Sunday, July 26, 2020

On Trump, This Is No Time to Mince Words

      Donald Trump has benefited from a certain squeamishness among his opponents about labeling him for exactly what he is ever since Hillary Clinton declined during the 2016 campaign to call him a racist. The tell-all memoir from his niece Mary Trump now makes clear that, apart from his racist rhetoric and racist policies, Trump is in fact a racist, who casually uses the n word and anti-Semitic slurs in family settings.
      Trump benefited as well from a certain hesitation among his critics about labeling him as a fascist despite the evident elements of fascism in his campaign. Trump’s current policy of sending federal forces into Democratic-led cities demands labeling him for what he is. “I have held off using the f word for three and a half years, but there is no longer any honest alternative,” Robert Reich, the former Obama secretary labor, tweeted last month [June 2]. “Trump is a fascist, and he is promoting fascism in America.”
      Jennifer Szalai, a critic at The New York Times, noted Reich’s tweet in her recent review of books about fascism: On Tyranny by the Yale historian Timothy Snyder and How Fascism Works by Jason Stanley, a professor of philosophy at Yale and son of Jewish refugees from World War II. Szalai contrasted Reich’s tweet with the previous hesitation among Trump’s critics to describe him as fascist.
      “The word fascism is so loaded that even some of the president’s most vociferous detractors had long been reluctant to use it,” Szalai wrote. “Ever since Trump became the Republican Party’s standard-bearer in 2016, the term has been floated and then dismissed for being too extreme and too alarmist, too historically specific or else too rhetorically vague.”
      One dictionary defines fascism as “far-right, authoritarian ultranationalism characterized by dictatorial power, forcible suppression of opposition, as well as strong regimentation of society and the economy . . .” Certainly, Trump’s campaign harked to the kind of far-right, ultranationalism that Hitler and Mussolini espoused. He also displayed the same penchant for theatricality and violent thuggery that they wielded to gain power.
      John McNeill, a professor of history at Georgetown, was among the experts who noted the elements of fascism in Trump’s campaign before the election. Writing in The Washington Post three weeks before the election, McNeill listed, among other common attributes, Trump’s hypernationalism, militarism, glorification of violence, and leader cult. “Fascists,” McNeill noted, “always looked to a leader who was bold, decisive, manly, uncompromising, and cruel when necessary.”
      Behind in the polls and helpless against the coronavirus pandemic, Trump needs something to demonstrate his prowess as a leader. He turned to deploying federal forces in a number of Democratic-led cites in an effort, in his own words, to “dominate” cities supposedly beset by widespread anarchy and out-of-control crime.
      The National Guardsmen and Border Patrol agents dispatched, supposedly, to protect federal property may not be brown-shirted storm troopers, but dressed in camouflage with no IDs visible they are behaving more like Trump’s paramilitary wing than as professional law enforcement. In Portland, Oregon, for example, federal agents have been seen arresting protesters without cause and pushing them into unmarked vehicles. Christopher David, a Navy veteran, suffered two broken bones in his hand when an unidentified federal agent beat him with a baton after David had approached the line of officers to challenge them to obey the Constitution.
      For his part, Portland’s mayor Ted Wheeler describes the federales’ presence as worse than unhelpful: like pouring gasoline on a fire, he said. Wheeler himself succumbed to tear-gas early Thursday morning [July 23] after the feds released canisters of some irritating gas while the mayor was speaking with protesters. Wheeler told the crowd that the feds’ presence amounted to “an unconstitutional occupation,” according to news accounts.
     "The tactics that have been used by our federal officers are abhorrent,” Wheeler said. “They did not act with probable cause, people are not being told who they are being arrested by, and you've been denied basic constitutional rights.”
      The critics of Trump’s tactics include two of President George W. Bush’s former Homeland Security chiefs: Michael Chertoff and Tom Ridge. Chertoff described Trump’s tactics to the Washington Post’s Greg Sargent last week [July 22] as “very problematic" and "very unsettling."
      Appearing on the PBS NewsHour [July 23], Ridge likened Trump’s tactics to “a reality TV approach” unlikely to help local authorities resolve urban problems. The former Pennsylvania governor told moderator Judy Woodruff that there was “no conceivable scenario” in which he would have agreed to federal agents’ presence in cities without prior consultation with and agreement from the local authorities.
      As acting DHS secretary, Chad Wolf disavows any need to have local buy-in. “I don’t need invitations by the state,” he said on Fox News [July 20]. “We’re going to do that whether they like it or not.” Speaking to the New York Times columnist Michelle Goldberg, Snyder noted that authoritarian regimes such as Franco’s Spain and tsarist Russia also deployed border agents against domestic enemies. “The people who are used to committing violence on the border,” Snyder explained, “are then brought in to commit violence against people in the interior.”
      Even if the historical analogy is imperfect, Trump’s policies are fascist and no more than barely lawful. The time to mince words has long since passed.

Sunday, July 19, 2020

Religious Right Collects Its Payoff at Supreme Court

      The religious conservatives who traded their integrity for Supreme Court seats collected their payoff this term in the form of three decisions favoring their distorted vision of religious liberties. It was a Faustian bargain from the onset to support a presidential candidate who mocks Christian values on a daily basis but who promised to appoint judges and justices who would bow down to the evangelicals’ golden calf.
      The evangelicals traded away their integrity a second time when they provided critical support to Brett Kavanaugh’s confirmation as President Trump’s second Supreme Court justice after he was plausibly accused of attempted rape as a privileged teenager. With Kavanaugh anchoring the Court’s conservative majority, the Court engaged in a burst of judicial activism in the last few weeks to give religious schools and religious employers special rights to disobey validly enacted laws that the rest of use are obliged to follow.
      The trifecta of decisions belie the conservatives’ complaint that the Roberts Court has gone rogue with a few liberal decisions favoring LGBT rights and abortion rights and blocking Trump’s effort to rescind protections for “dreamers.” The back-and-forth debate about those decisions dominated the blogosphere even as the justices were drafting the end-of-term opinions giving the religious right almost everything it could have expected.
      Religious conservatives had weighed in with amicus briefs in all three cases. They kept their eyes on the prize even as most Court watchers were preoccupied with the Trump subpoena cases. In the first of the three decisions, the Court gave a windfall to private religious schools by overriding constitutional provisions in thirty-eight states that prohibit public funding of sectarian schools. The 5-4 decision in Espinoza v. Montana Department of Revenue [June 30] overrode the Granite State’s “no-aid” provision by holding, under the Free Exercise Clause, that the state’s scholarship program for private school students had to include religious schools.
      In his opinion for the Court, Roberts gave no weight to the state’s interest in avoiding entanglement with religion at the risk of Establishment Clause issues. The ruling cheered school choice advocates intent on keeping religious conservatives in their camp and conversely alarmed public school advocates fearful of further defunding of financially struggling public schools.
      A week later, the Court gave religious schools another windfall: a get-out-of-jail-free card in the form of a decision that largely exempts them from federal job discrimination laws. The 7-2 decision in Our Lady of Guadalupe School v. Morrissey-Berru [July 8] allowed two Catholic schools in the Los Angeles area to get out of federal court lawsuits filed by former teachers who said they were fired in violation of federal civil rights laws.
      One of the teachers claimed the school replaced her with a younger teacher in violation of the Age Discrimination in Employment Act; the other teacher claimed that her school let her go in violation of the Americans With Disabilities Act after she asked for medical leave to pursue treatment for breast cancer. Both schools cited deficient performance by the teachers, but rather than defend the suits in court they asked for immunity under a recent Supreme Court decision giving religious schools a “ministerial exception” for teachers in religion classes.
      The new decision expands that exception to include almost anyone that a religious school identifies as having a minister-like role at the school: athletic coaches, probably, and maybe even custodians. In her dissent, Sotomayor correctly said that the decision denies federal civil rights protection to “countless” numbers of religious school employees nationwide.
      The decision flagrantly disregards Jesus’s teaching on the relationship between religion and state, as quoted in Matthew 22:21: “Render to Caesar the things that are Caesar’s and to God the things that are God’s.” In his letter to the Romans, Paul similarly stressed that Christians enjoyed no superior rights to disregard the law. “Let every person be subject to the governing authorities,” Paul wrote in Romans 13:1.
     In the third of the decisions, the Court returned to the attack by religious conservatives on the Obamacare mandate that employers provide coverage for contraceptives in employee health benefits plans. The 7-2 ruling in Little Sisters of the Poor v. Pennsylvania expanded the exemption already created for private employers with religious objections to the mandate. In the new decision, the Court upheld a Trump administration regulation expanding the exemption to employers with either religious or moral objections to including contraceptives in their health benefit plans.
      All told, the decisions bear out the observation by the New York Times’ semi-retired Supreme Court correspondent Linda Greenhouse that Roberts is on a “mission” to rewrite religious liberty jurisprudence. The decisions, Greenhouse wrote in a recent article [July 16], amount to “insisting on organized religion’s entitlement to public benefits as a matter of equal treatment while at the same time according religion special treatment in the form of relief from the regulations that everyone else must live by. Benefits without burdens, equal treatment morphing into special treatment.”
      True, religious conservatives suffered a defeat in the ruling to extend Title VII to LGBT employees (Bostock v. Clayton County). In writing the opinion, however, Gorsuch made clear that employers with religious objections to hiring LGBT individuals are welcome to come back and claim a religious liberty to discriminate. Those claims are likely to find a receptive audience among the Roberts Court majority, in open mockery of the Court’s carved-in-marble motto: “Equal Justice Under Law.”

Sunday, July 12, 2020

Supreme Court Lets Trump Win While Losing

      Chief Justice John Roberts said many of the right things in his opinion for the Court upholding the subpoena that a New York grand jury has issued to get President Trump’s tax returns and financial records from his accountants. But Roberts made the mistake of observing Marquess of Queensberry rules in a knife fight with a notorious thug, Donald Trump, who has played dirty ever since he came of age in the anarchic jungles of New York real estate.
      In any ordinary case, the subject of a subpoena has every right to challenge the subpoena, document by document, issue by issue, until lawyers run out of arguments. But this is no ordinary case: this is a case investigating possible criminal wrongdoing by the President of the United States and the president has played the Court by running out the clock.
      One legal term comes to mind: instanter. That’s when this subpoena should be enforced, not weeks or months from now after a remand. Imagine, 46 years ago, that the Supreme Court, instead of enforcing the subpoena "forthwith," had let President Nixon hold on to the Watergate tapes until the next presidential election. In Trump’s case, that is the upshot of the Court’s weak-kneed if rhetorically forceful decision last week in Trump v. Vance [July 9].
      Trump’s tax returns should have been disclosed to the public, not to a secrecy-bound grand jury, four years ago, but the Supreme Court has no power to enforce the political norm every presidential candidate has followed since Nixon. Still, the justices might have taken note of that background when considering what to do now.
      Even apart from the political background, Trump abused the legal process by claiming an immunity that the Nixon Court rejected unanimously in 1974. On that issue, this Court, even with two of Trump’s appointees as part of a Republican-appointed majority, was again unanimous. The president enjoys no constitutional immunity from complying with a court-issued subpoena in a criminal case, the Court held, and no special entitlement to a heightened judicial standard before enforcement of a subpoena.
      One of the architects of that strategy, the longtime culture warrior Jay Sekulow, tempered last week’s celebrations for the rule of law by pronouncing himself and his client to be “pleased” that the day’s rulings “temporarily blocked” either Congress or the New York district attorney from getting Trump’s tax records. “We will now proceed,” Sekulow promised, “to raise additional constitutional and legal issues in the lower courts.”
      Note in that regard that Sekulow got no votes for his maximalist view of presidential immunity at the Supreme Court, nor earlier at the Second Circuit. For his part, the New York DA Cyrus Vance Jr. declared the ruling “a tremendous victory.” Vance noted that Trump’s legal tactics had delayed the investigation for a full year and promised that it would now be resumed “to follow the law and the facts wherever they may lead.”
      Trump himself fumed on Twitter, but his press secretary Kayleigh McEnany used the White House press room to declare the ruling “a win for the president.” Meanwhile, the Court was less generous to Congress in the other subpoena case, Trump v. Mazars USA, despite Congress’s well-established investigatory powers under Article I. The 7-2 decision in that case faulted the lower courts for giving too little weight to Trump’s “significant” separation-of-power objections that Congress had no legitimate legislative purpose in looking at his tax returns.
      The Roberts Court’s DNA comes straight from presidential power absolutists with no genetic disposition to defer to Congress. Thus, even while appearing to rule against the president, the Court also ruled against Congress by crafting a new four-part test for lawmakers to meet in seeking information from the president. From the Capitol Hill perspective, Dan Goldman, counsel to the House Judiciary Committee during the Trump impeachment, correctly observed on one of the cable networks, “The president escaped responsibility through litigation.”
      Trump has escaped responsibility for his actions ever since childhood, according to the unflattering portrait of his upbringing in the new book by his niece Mary Trump, Too Much and Never Enough. As his father’s favorite, Donald was never punished and never reprimanded for what became his lifetime habit of lying: vide his 16,000 lies as president, according to Fact-Checkers at The Washington Post.
      The Supreme Court has no role to play in trying to correct the character flaws that Trump developed from a dysfunctional upbringing, but it could have and should have taken account of the contempt that Trump displayed toward the courts and the rule of law throughout these two subpoena cases. Compare, for example, the complaints from some of the Court’s conservatives about the legal tactics used by death penalty lawyers — described by Alito in one case as “guerrilla warfare.” As to Trump’s dilatory tactics in the subpoena cases, Alito raised no concern, not even an eyebrow.
      Instead, Alito and his right-wing wingman Thomas both dissented in favor of some sort of special consideration for Trump in contesting the subpoena on remand. “We should not relegate a President to the meager defenses that are available when an ordinary grand jury subpoena is challenged,” Alito wrote. Or, differently phrased, the president is if not above the law, at the least not under the same law as anyone else served with a lawfully issued subpoena.