Supreme Court’s new split emerges in Colorado case

 

Gordon L. Weil

The Supreme Court’s decision preventing Colorado from keeping Donald Trump off the Republican primary ballot revealed two splits among the nine justices.

While all nine agreed that were adequate grounds to determine that a decision relating to a federal office could not be made by individual states, but only by the federal government, five justices went even further. 

The five ruled that Congress is required to pass a law giving effect to a ban on insurrectionists holding public office before they can be blocked.  In other words, the Constitution’s 14^th Amendment ban cannot function without additional congressional action.  This ruling was not necessary to overrule Colorado, but, for the first time, it established rules for the future.

Three justices disagreed vehemently and protested that it was not necessary for the majority to go that far, and it should not have.  Frequent judicial practice is to avoid making decisions that are not needed to produce a result.

Another justice wrote that sending a unified message rather than displaying a heated and unnecessary split would have been in the public interest.  This justice agreed with the three that the Court should not have gone beyond what was required and did not endorse the majority’s additional ruling. The justice said the Court should not have entered into unneeded controversy during a campaign year.

This justice stated: “In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.”

This justice put the public interest ahead of the frequent partisanship shown even on the Supreme Court.  She is Justice Amy Coney Barrett, a Trump appointee.  Thus, this was not a purely partisan split, though the three other justices who opposed the extra ruling had all been appointed by Democratic presidents.

So, aside from the split on the wisdom of the extra opinion, what other split existed? 

Male-female.

Five justices, all men and all GOP appointees, couldn’t resist going too far in their enthusiasm to overrule Colorado and ease Trump’s way.  Without their unnecessary and potentially controversial expansive ruling, the women might have simply agreed with the decision to block Colorado’s decision.  The result would have offered the public a unanimous and appropriate decision.

Instead, the majority got a scolding by Barrett, and the Court did nothing to repair its declining image.

Putin has lost his Ukraine gamble, but has U.S. won?

 

Gordon L. Weil

Vladimir Putin has lost in Ukraine.

Has the U.S., Ukraine’s major backer, won?

Putin stated Russia’s goals, has not met them and has no chance of success.

The U.S. has not stated America’s goals in intervening in the Ukraine War. Simply saying that the U.S. backs Ukraine has proved to be inadequate.

Putin has had two objectives. First, he wanted to prove that Ukrainians were really Russians and a second-rate version at that. In line with Soviet mythology, “the Ukraine” is merely a part of Greater Russia, he thought, and its people were inferior and subject to exploitation. Soviet leader Joseph Stalin had literally starved millions of them to death in the 1930s.

Second, Putin worried that the truly independent Ukraine, having expelled his puppet president in 2014, would bring the West, notably NATO and the EU, right to Russia’s borders. He wanted Ukraine to serve as a buffer state subject to Russian domination, just as is neighboring Belarus.

The Russian invasion of Ukraine two years ago is an utter failure. Ukraine’s heroic stand to repel the Russians has made the entire world aware of the strength of its people and their rejection of Russia. Despite Putin’s hopes, there would be no Russian puppet president ruling in Kyiv, Ukraine’s capital.

Both the EU and NATO have begun moving toward positive consideration of Ukraine’s membership. The Russian threat has led Europe to step up its own defense efforts. If Ukraine joins NATO, the U.S. and Europe will be committed to defend it against any further Russian invasion. That could be a powerful deterrent.

Meanwhile, reacting to the Russian invasion of Ukraine, Finland and Sweden are becoming NATO members, more than doubling Russia’s border with NATO members. It would just about double again with Ukraine as a member. Putin’s policy backfired.

If defeating Putin is the U.S. objective, then it has won. But American policy still seems to support Ukraine’s hope of expelling Russia from all territory it has taken since 2014, notably eastern Ukraine and Crimea. The question is whether that’s possible.

While Russia can seize territory and bomb Ukraine, Russia itself is almost immune from attacks by Ukraine using NATO-supplied weapons. Russia’s nuclear weapons give it a military advantage that cannot readily be overcome. It’s like fighting with one arm tied behind your back.

Aside from arming Ukraine, other wartime developments have been less favorable for the U.S. and Europe. The U.S. ended the great powers’ agreement with Iran that restrained its nuclear ambitions. That propelled Iran into a closer relationship with Russia under which it supplies military drones.

Russia replaced its trade links with Europe by an enhanced relationship with China, making the Chinese Yuan into Russia’s main international exchange currency, displacing the U.S. dollar. It managed relatively easily to evade American economic sanctions, using intermediary countries like Armenia to launder transactions.

The military stalemate in Ukraine and the failure of the efforts to cripple the Russian economy, which would force it to end its invasion, have contributed to increased American political fatigue with the Ukraine War. A broad understanding that the U.S. opposes invasions to seize the territory of free countries has been turned into a partisan issue by some Republicans.

The U.S. might yield some of its leadership responsibilities to Europe if countries there continue their recent moves to strengthen their own defenses, simultaneously reducing reliance on the U.S. Would the U.S. willingly cede some of its international influence?

If not, the U.S. needs to better define its objectives in Ukraine and pursue them while leading the Western alliance. Could Russia be further weakened by continued American pressure? Or is the GOP correct that endless conflicts have become sufficiently unpopular that a path to the end of the current level of Ukraine support must be found?

A stronger policy based on American interests could require less deference to Ukraine’s understandable desire to recover all of its lost territory.

Of course, Russia must accept formally what it has already lost in Europe and recognize Ukraine as a future member of the EU and NATO. Russian troops must withdraw from territories taken in the past two years, allowing referendums on their future. As for Crimea, Ukraine could gain free access through it to the open sea, just as it gave Russia when it controlled Crimea.

The Republicans are desperate for issues to fight out with the Democrats and Ukraine increasingly looks like one. But allowing U.S. policy on Ukraine to become part of this year’s political campaign would serve Russia’s purposes and weaken America’s place in the world.

An end to conflict in Ukraine may depend on avoiding political conflict on this issue in the U.S. The first step toward ending the conflict might begin with an attempt by the parties to find a bipartisan endgame policy.

Younger generations will pick next president

 

Gordon L. Weil

America is divided. While that may hardly be news, it’s more than a matter of liberal versus conservative or Democrat versus Republican.

Part of the population seems to live in another country. It has a different history, a different culture and, as the annual additions to the dictionary reveal, a different language. It is composed of generations known as Gen X and Millennials.

It may be joining the political process at a pace unusual for younger people often more concerned with getting their feet on the ground than their hands on the ballot. It may now be the critical element in decisions about the future.

On the older side of the dividing line are the members of the Silent Generation, children of the Depression and World War II, and the Boomers, children of the post-war world. These people have been shaped by their experiences and may participate in the political process to protect what they have and to preserve what is familiar.

Donald Trump and Joe Biden are both well tied to the older side of this division. While their physical and mental abilities may raise doubts about their serving four more years, they are also out of touch with many people generations younger than them who could decide the election.

The New York Times has recently reported on an effort to encourage older people to sit down one-on-one with younger people to exchange ideas and experiences. This is not a matter of the senior educating the youth; the teaching flows both ways. Has Trump or Biden had such a conversation – a chat between equals across generation lines – in recent years?

The younger half of the population is not a “constituency” simply to be fed promises about issues like student loan forgiveness or excessive government regulation. It is a large, growing share of the population, people that the government is supposed to serve, not a segment to be patronized. But the two people who may be this year’s presidential candidates have little real contact with it.

Some analysts criticize the Democrats for yielding their traditional blue-collar constituency to the GOP. Trump’s success can easily be attributed to this failure of the pro-labor party to prevent the slide of their key backers to the pro-business Trump Republicans. But the facts about younger Americans suggest this thinking is flawed.

A few years ago, Pew Research, a respected independent organization, conducted a broad survey of the American population by age. What it discovered could give political comfort to the Democrats.

Pew found that the younger generations are better educated, wealthier, and less likely to be married than the older generations were at the same age. Among the younger people, women are better educated than men, and many more women are employed than had been the case with their parents’ generations.

A majority of Gen Xers and Millennials consider themselves liberals and Democrats or leaning that way. The breakdown for the Silent Generation and Boomers is just the reverse. But liberals outnumber conservatives, according to Pew.

The GOP may not worry about these numbers, because older people are more likely to vote than the younger generations. That could be one reason for Republicans opposing easier voting access, asserting that such access increases cheating. With limited access to the polls, newcomers may be discouraged from voting.

While it remains true that the older groups are generally more conservative than the younger groups, their ranks are not growing. Meanwhile the number of liberals is increasing, thanks to the two younger generations. This growth comes mostly from independents, who have often seen themselves as moderates.

Look at Maine. In the 1950s, when Democrat Edmund Muskie pulled off an upset to become governor, Republicans heavily outnumbered either Independents or Democrats. Now they have fallen to third position, with the Democrats leading in party registration. Muskie caused some Republicans to become Independents, and later they transitioned to the Democrats.

The challenge for the Republicans is to prevent the continued drift of voters to liberalism, difficult in light of economic and social change. That leaves the GOP with efforts to keep down voter participation in the belief that older people are less affected than new participants when they face artificial obstacles to voting. Above all, Trump must focus on conserving his support.

The Democrats must get out their vote. That, too, may be a challenge, illustrated by reactions to the Gaza conflict. Many young voters are critical of Biden’s reluctance to support a ceasefire. He seems caught between traditional but aging political allies and the younger generations, which still need to be motivated to vote and to support him.

Biden may count on winning, relying on popular dislike of Trump. The demographic divide shows he must do more to bring the younger generations, especially women, on board.

George Washington’s message to Biden, Trump: It’s time to go

Gordon L. Weil

Once again, it’s time for Presidents Day. If you ask people what it celebrates, you may get a shrug or the easy conclusion that it recognizes all the presidents since the beginning of the country.

In both federal and Maine law, the holiday is Washington’s Birthday, intended to recognize the person called “The Father of His Country.” As is my tradition, this my annual column on George Washington, who I believe is our greatest president.

We usually pick our presidents based on who they are more than because of the promises they make to us. In terms of quality of character, a standard that seems mostly forgotten these days, Washington is virtually unbeatable.

The principal measure of character is integrity. Define yourself and then live your life in line with who you are.

When Washington was selected as commanding general of the Continental Army, composed of state-contributed forces, he was possibly the only official American. Throughout his career, he defined himself that way and tried always to act in the national interest and not his personal interest. He saw his job as MAG – Make America Great.

The Constitution was only a document when he became president in1789. With Congress, he had the task of creating a new government for a new country. He could have become its king, but believed so strongly in its promise, that he chose to stick to the job of making the Constitution work. That may look easy from today’s vantage point, but it wasn’t.

Aside from creating the departments of government with their powers and responsibilities, he had to develop national policies to represent the interests and needs of about four million people from Maine, then part of Massachusetts, to Georgia. He understood that a country already so vast and destined to be much greater, could only be governed through compromise.

From the outset, he faced a conflict over the role of the federal government. On one side were the Federalists, who favored a strong central government. The Anti-Federalists, which would develop into the Democratic-Republicans, favored an agrarian country with powerful states. Alexander Hamilton led the Federalists and Thomas Jefferson headed the opposition.

Washington’s approach was to attempt to find a compromise. Of course, the majority party should have the greater influence over the final decision. Washington, though not a partisan politician, agreed with the Federalists, based largely on his unhappy experience in trying to assemble and finance a wartime army dependent on voluntary state contributions.

He succeeded in creating compromises and in developing policies that a majority could support in the national interest. The work produced controversy and Jefferson quit the government, when he did not prevail. He later came to realize that he had gone too far in opposing Washington.

Washington, the war general, became the successful post-war president because of his character. He understood that there were limits that applied to the role of government and that those limits applied to him. He would not abuse the power given to him.

He tried to show his commitment to the people, reassuring them that independence was worth the sacrifices that had been made to win it and that the government merited their support.

He had not sought the presidency. After the Revolutionary War, he returned to his farms and lands in Virginia. He had removed himself from farming and real estate investing while serving his country. One of the wealthiest people in the country, he had left virtually all management to others, however much he wanted to return to Mount Vernon.

Whatever satisfaction he took from his service as general was personal and he did not seek attention. Yet, after the Constitution was ratified, attention came to him based on his previous service. The country wanted him as their first president. His proven integrity reassured national leaders that he could head the government without seeking personal advantage.

The proof of his integrity came when he voluntarily decided that two terms as president was enough, setting a precedent that much later became part of the Constitution. He retired back home to great acclaim. That’s called “leaving on a high note.”

Washington understood a simple fact that seems to have escaped many of his successors. After a president leaves office, there’s still one more election – the judgment of history. That depends heavily on how a person conducted themselves and led the government and often relatively little on specific policies. And it may take a long while for that judgment to be made.

History’s judgment about George Washington is clear. Two of his successors are now vying to live in the White House, the house he built. They should learn at least one lesson from him before the last election they will ever face. That’s knowing when it’s time to go.

Presidential politics blocks immigration reform

 Trump rejects GOP immigration plan

Gordon L. Weil

“It’s like déjà vu all over again.”

These memorable words, attributed to the great Yogi Berra, fit the attempts to come up with an immigration policy.

In 2013, a bipartisan group of senators developed a comprehensive package on immigration policy reforms. It could pass the Senate, but the House Republicans refused to consider it and it died. Congress did nothing, and the waves of uncontrolled immigration grew larger.

Another bipartisan group of senators has agreed on a package of proposals that could be a major first step toward dealing with immigration, but the House Republican leadership blocked it and most Republican senators then finished it off. Maine’s GOP Sen. Susan Collins voted for it.

Why oppose a useful first step on immigration policy? Because it might work. Republican leaders are loyal to Donald Trump, who is likely to be their presidential candidate. He does not want President Biden to get any credit for positive progress. Trump wants no action taken until he might assume office in January 2025.

It does not matter to Trump that uncontrolled immigration at the Mexican border would continue for many months. The situation should be allowed to grow worse so that he can garner the historical credit for making it better. He has taken a similar stance on economic policy. Let it get bad, so I can fix it, he implies.

Immigration is now a major issue. Some opposition to it may be based on racism, a flat rejection of people who look different. But probably more importantly, people who are comfortable with their way of life dislike the inevitable changes that result from the increased population of people with other cultures.

Beyond such direct concerns may be a sense that, if the federal government cannot control the borders, it is failing at its core job of governing. Attempts by Texas GOP Gov. Greg Abbott to control his state’s borders may be the tangible expression of the broader doubts created by a lack of effective federal action.

Historically, most early immigrants to the U.S. came from northern Europe. Then, successive waves of Irish, Italians, and Eastern Europeans, notably Poles and Jews, arrived as the result of an open-door policy. Each faced opposition and had to overcome discrimination. Asians were long excluded.

In 1924, Congress adopted an immigration policy that favored only European immigration. Quotas were established. This system encountered relatively few problems with uncontrolled immigration.

Though some immigrants would have merited asylum from persecution in their homelands, many came in search of the economic benefits of a free society and open frontier. That probably remains true today.

Prosperity in the U.S., Europe, Canada and a few other countries has made immigration attractive to people from Latin America, Africa and the Middle East. Though new and tougher policies may aim at limiting entry, they are ineffective in halting the flow of uncontrolled immigrants. Old laws are difficult to enforce, and they fail.

In the U.S. the number of unlawful and undocumented immigrants continues to grow. Because the current system cannot stop or process the flow, many are released into the national population while awaiting decisions on their asylum claims. This is what has turned immigration into a national policy concern.

Absurd proposals for a physical barrier between the U.S. and Canada result from an effort to nationalize concerns about immigration.

Neither Trump’s wall nor Biden’s token attempt to provide a more effective screening process has worked to halt uncontrolled entry. And the U.S. simply cannot create enough effective programs in their home countries to discourage immigrants’ desire for better lives in the northern countries.

The basis of any new policy needs to begin with a determination about the feasible flow of immigrants over a decade. Immigrants provide labor and pay taxes and are new customers in a consumer-oriented economy. Desirable growth can be planned and agreed by Congress.

Border patrol agents and immigration courts need to be increased. The entry permit system requiring application outside the U.S. before border processing should be strengthened. The wall can be expanded. A trigger mechanism should allow the border to be closed. These are all GOP demands, and the Democrats accepted them. But Trump and his loyal backers killed them.

The U.S. also must deal with Mexico, which serves as a freeway to America. It gains much from being America’s favored trade partner. It is now deriving export gains as the U.S. moves away from Chinese imports. But it should not openly undermine American society and interests just as China has sought to do.

Trump offered a simple solution – build a wall paid for by Mexico. Biden failed to respond to growing public distress over the current policies. For years, Congress has allowed immigration to become excessively entangled in politics.

And uncontrolled immigration continues.

America faces historic choice

Has liberal democracy run its course? 

Gordon L. Weil

The U.S. faces a particularly historic choice. It has always faced the need to balance the priority given to personal freedom with the responsibility for the community. This year, it is challenged to renew that balance.

Of the two priorities, personal freedom had greater weight in the years between the country’s founding and the Great Depression, beginning in 1929. Government’s role was limited and both the states and the private sector enjoyed great freedom of action. Individuals were expected to benefit from their actions or, if discontented, to move to the vast frontier.

But the end of the frontier coupled with the inability of traditional institutions to protect people from the heavy burden of unemployment and poverty imposed by the Depression, required broad change. In response, President Franklin D. Roosevelt led the federal government to take responsibility for the common good.

The government began to provide a social safety net, like Social Security, to ensure that all might be sustained, but it also acted directly to create temporary jobs. Its growth was greatly increased by the measures, from the military draft to industrial production, responding to the national danger caused by the Second World War.

In the decades since that war ended, the U.S. has operated under a liberal democratic system, which enhanced the rights of all Americans and continued a major role for government. American ideals, seeming to be fulfilled, and American economic and military power made the country the world’s leader.

Now, the great national debate, causing a divide almost as emotional as the differences that yielded the Civil War, is about whether to restore, so far as possible, the country as it was before Roosevelt or to develop further the system he launched.

The assumptions underlying the transformation under Roosevelt are now no longer universally accepted. Opponents claim that liberals reward dependency and do not encourage independence. They claim that people when challenged can succeed on their own, if given enough freedom. They ignore the degree to which common action through government has been woven into life.

At the same time, the post-war “peace dividend” seems no longer to exist. The ideals of liberal democracy, dependent on popular control, were widely accepted. Now, voters will support more warlike and less democratic leaders. The U.S. could back away from post-war alliances with other countries in favor of going it alone.

American relations with dictators like Putin and Xi and with autocrats in Hungary and Saudi Arabia might be conducted as purely business deals, more opportunistic than idealistic. Profit over principle.

Should the U.S. revert to traditional individualism and cede territory and influence to dictators? Are there truly American “values” that need to be protected and do people agree on them?

Our history can help in dealing with this choice. It can serve to both instruct and warn us. It should be the foundation for our actions, while not limiting our ability to respond to change with innovation.

Americans are particularly fortunate among all nations and at all times to be able to defend our values and influence the world in which we live. We have a rich land and a diverse and creative nation. We live in a country characterized by optimism and hope.

As I frequently note, in the warm 17-week Philadelphia summer of 1787, some 39 men devised the Constitution, producing the government that the 1776 Declaration of Independence had promised when it rejected the British King.

The real American Revolution was the Constitution. It ingeniously created a truly federal system with two forms of sovereignty and with a national government designed to prevent the growth of excessive power under a new kind of king.

This was something new in the world, a model for other countries. To the processes of the basic document was added a Bill of Rights, designed to protect individuals from excessive government power. Today, Americans might not fully appreciate that there may be no other country having a set of rights equal to those in the First Amendment.

When the drafters of the Constitution had just about finished their work, they realized they had not decided who was to adopt it as the supreme law of the land. Finally, one member proposed it should be the decision of “We, the People.” Constitutional conventions in each state would decide.

In the end, the government belongs to the people. The media inform and argue, but the people must make the ultimate decisions. A failure to pay attention, a willingness to make easy and ill-informed decisions, and, worst of all, not voting at all means that the government is forfeit and the Constitution turns to dust.

This year, more than selecting among candidates, the choice may well be made between the two great streams of American history.

Should courts have the last word?

Gordon L. Weil

“The ball’s in your court.”

This time-worn sentence meaning that you have the responsibility now has taken on a new and strong meaning these days.  Now, at widely separated places, the ball is in the court – of a court.

Most familiar are the cases based on charges made against former President Trump in criminal and civil case in federal and state courts.  Ultimately, many of them are likely to end up before one tribunal – the U.S. Supreme Court.

Aside from the merits of these cases against Trump is the effect of their proceedings and possible outcomes on his chances for nomination by the Republican Party and election as president.  The balls in these courts could not be more important, perhaps even less for Trump’s actions than for his political future.  By inference, the decisions could affect the country’s future.

Because these cases are so numerous, it is likely safe to say that any one of them could produce court action any day.   They provide the ongoing background for the race to the White House.

The Trump cases help place the court system itself on trial. The Supreme Court and some federal and state courts have become embroiled in current politics, which puts them in focus.  Once having begun to make rulings on political issues, the courts seem to be drawn ever more deeply into politics.   As this has happened, public confidence in the Supreme Court has fallen.

The American judicial system has made the Supreme Court the ultimate authority on the meaning of the Constitution, a document whose application to a situation unforeseen when it was written remains to be determined.  Neither Congress nor the president have the final say; the Court alone has the last word. 

The result is that, under the U.S. system, final decisions are made by unelected justices. And their views of just what is the last word may change as rulings on race and abortion have shown.

While this situation is unlikely to change, it raises the question of whether the politics of one generation can reach across decades to later generations.  Taking American political evolution into account might reduce concerns about the politicization of the Supreme Court.  This becomes increasingly an issue.

In other countries, the question of courts making the final decision is now at the center of political controversy.  In these countries – the United Kingdom and Israel – there is no written constitution.

In the U.K., the government seeks to be able to transfer asylum seekers after arrival in its jurisdiction to the country of Rwanda in Africa.  But its Supreme Court has ruled that the U.K. agreement with Rwanda would force Britain to violate international agreements that have been adopted by its Parliament.

The British system gives the final word to Parliament and not to the Supreme Court. In the absence of a constitution, the Supreme Court must accept acts of Parliament and cannot overturn them.

Now, the government has passed a new law to overrule the U.K.’s previous acceptance of some international human rights treaties.  That would prevent the Supreme Court from applying those treaties, and the Rwanda deal could proceed.  By overruling treaties,  the U.K. could damage its international credibility. 

A similar situation has arisen in Israel.  For many years, the Supreme Court has determined if laws meet a standard of “reasonableness” and, if not, they may be overturned.  Certain laws are deemed to be basic and, generally, they may not be overturned.

The Knesset or Israeli Parliament has passed a law stripping the Supreme Court of the ability to use “reasonableness” and emphasizing the authority of the Parliament to have the last word on the law.  The Supreme Court has overruled this basic law as not meeting the rule of reasonableness.  The issue is sure to continue to be contested.

The America, British and Israeli situations revealed that determining who has the last word on the law is a major, unresolved political issue.  In the U.S., some solutions aim at finding ways to promote changes in the Supreme Court’s composition, while respecting life tenure of judges and trying to reduce its direct political involvement.

A panel at the American Academy of Arts and Sciences has proposed that justices serve on the Supreme Court for 18 years and then, without losing their standing, serve only on federal courts of appeals.  Justice David Souter of New Hampshire has done almost exactly that.

I have proposed the appointment of temporary additional justices as have been used on other federal courts.  They temporarily increase the size of the court and then fill vacancies as hey occur, restoring the original number.  Meanwhile, they can help with the workload and the court’s balance.

Either of these changes can increase the chances that the Supreme Court can be more frequently renewed.