As a Personal Note: Need to Read More of This Montesquieu Guy

For all that I've read about the foundations of the American political experiment that is our Constitution... why is it only NOW am I hearing about this guy? Robert A Ballingall over at Crooks & Liars wrote a big article on Montesquieu's contributions to the Founders' political philosophy:

How are people in the U.S. to make sense of these trends? As Americans celebrate the country’s 250th anniversary, how faithful is the U.S. today to its founding principles? I’m a political philosophy scholar who studies constitutional government. In my view, an especially helpful approach to answering such questions is to revisit the towering but neglected influence of the French philosopher Montesquieu on the founding of this country...

On the separation of powers, Montesquieu was, in James Madison’s words, “the oracle who is always consulted and cited.” Of all authors cited in political writings published by Americans between 1760 and 1805, none was more frequently mentioned. He loomed so large that “American republican ideologues could recite the central points of Montesquieu’s doctrine as if it had been a catechism,” according to historian Forrest McDonald.

Montesquieu was especially celebrated for his account of how and why political power needs to be separated into branches. But behind this now familiar idea was another that is less remembered: Montesquieu’s theory of liberty inspired the founders’ own understandings of this core concept of American politics...

For all that I've been told about Locke, and Mill, and that other guy, nobody's talked about Montesquieu until now.

Dammit now I got more homework to finish.

No Punishment to Which trump Can Be Subjected By a Wingnut SCOTUS

The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the King of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a National revolution...
-- The Federalist 68, by Alexander Hamilton 

I really hate being in this darkest timeline. 

As I dreaded earlier, this Far Right controlled Supreme Court ruled on donald trump's plea for legal immunity to save him from the federal charges he is - maybe was now - facing over the stolen classified documents at Mar-A-Lago and his role in the January 6th Insurrection. They basically gave him everything trump asked for and destroyed any pretense at accountability in the process (via Amy Howe at SCOTUSBlog):

In a historic decision, a divided Supreme Court on Monday ruled that former presidents can never be prosecuted for actions relating to the core powers of their office, and that there is at least a presumption that they have immunity for their official acts more broadly.

The decision left open the possibility that the charges brought against former President Donald Trump by Special Counsel Jack Smith – alleging that Trump conspired to overturn the results of the 2020 election – can still go forward to the extent that the charges are based on his private conduct, rather than his official acts.

The case now returns to the lower courts for them to determine whether the conduct at the center of the charges against Trump was official or unofficial – an inquiry that, even if it leads to the conclusion that the charges can proceed, will almost certainly further delay any trial in the case, which had originally been scheduled to begin on March 4, 2024 but is currently on hold.

Writing for the majority, Chief Justice John Roberts emphasized that the president “is not above the law.” But Justice Sonia Sotomayor, in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, countered that if a future president “misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop...”

Sotomayor is rightly pointing out that a corrupt President will ignore the meaningless assurances Roberts is offering, because that corrupt SOB will figure out how to drag everything under that "official acts" umbrella and nobody - not even future Courts - will be able to argue otherwise.

This ruling goes against what was considered settled law with Nixon v United States, which stated clearly "no one is above the law." This Roberts Court is now saying that a sitting President is above the law, and can inflict acts of retribution and cruelty on everyone else.

This is the power of kings: To rule with impunity and injustice. This is something our nation's Founders fought against. We're due to celebrate the holiday honoring their Declaration against the tyranny of a British king, and these wingnut Justices just undid everything the Founders stood for.

When they created the Executive branch, when they settled on a President of the United States, the Founders insisted on establishing checks and balances to ensure political power never rested with a tyrant. By creating the idea of even limited immunity related to the "duties of the office", this Court just upended those balances, ended those checks.

A crooked man in the White House - someone like trump - can now do anything he wants.

Consider what trump wants to do in a second term in office should he lie, bully, and steal his way back into the Presidency. he's openly planning revenge against the New York officers and judges who held him accountable for his acts of fraud and sexual assault. trump and his anti-immigrant handlers are drawing up plans to seize up to 20 million people they'll claim are illegal immigrants and hold them in "camps" (note: there aren't that many illegals in America. They'll likely be seizing real citizens - mostly kids unable to produce ID - and making them suffer) in clear violation of civil rights. And he's planning to gut the Executive branch of civil service employees in violation of workers rights and the needs of the public. 

We are now facing the serious threat of an uncontrolled donald trump sitting in the Oval Office with a literal license to kill.

The entire nation needs to recognize the threat donald trump and his Far Right Republican allies represent. No one is going to be safe if he gets back in the White House.

To the 81 million Americans who voted for Joe Biden in 2020, you need to come back to the ballot box and support him - as Biden respects the rule of law and denounced today's ruling - again. To every Independent voter out there, you need to pick a side now and vote for the Democrats who won't subvert the Constitution and its protections we've lived with our whole lives. To any Republican voters who still respect the rule of law and understand how dangerous trump is, you need to get over any hesitancy to vote Democrat and for the LOVE OF GOD AND COUNTRY vote Biden.

The entire nation as we know it is now at the edge of the cliff. trump and his cronies are eager to drive us over that edge.

Time to stand up. Time to vote. Time to deny these corrupt trumpian powers any dominion over us.

With All of the Defenses of Any Other Criminal Defendant: AKA Trump Is Toast

After a month of waiting, the U.S. Court of Appeals hearing donald trump's claim of "absolute immunity" reached a verdict and dropped it this morning... right on top of trump's head like a 16-ton weight. Via Carrie Johnson at NPR:

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has ruled that Donald Trump does not enjoy broad immunity from federal prosecution, a major legal setback for the former president, who said he will appeal.

They wrote that for the purposes of this criminal case, "former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant."

The ruling comes a month after lawyers for Trump made sweeping claims that he enjoyed immunity from federal prosecution, claims that lawyers for the special counsel said would "undermine democracy" and give presidents license to commit crimes while in the White House, such as accepting bribes for directing government contracts or selling nuclear secrets to a foreign adversary.

It would be "a striking paradox," the judges wrote, if the president, who alone has the constitutional duty to ensure that laws be faithfully executed, "were the sole officer capable of defying those laws with impunity."

Excuse me for a moment. (Runs around the room squeeing like it's another Fitzmas morning) Okay.

"We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter," the judges wrote. Doing so, they said, "would collapse our system of separated powers by placing the President beyond the reach of all three branches..."

As part of their ruling, the judges granted trump's team to file appeal up to the Supreme Court, but gave him a strict deadline of NEXT MONDAY, implying that they want this legal matter resolved quickly. Experts are pointing to the quick turnaround if SCOTUS hears the appeal that the highest court in the land would have to issue a ruling this summer at the latest, hopefully with trump facing his DC trial involving his efforts to undermine the 2020 election results well before 2024 Election Day.

If you want to read the ruling, the link to it is here.

Referring to Marcy Wheeler over at her Emptywheel blog, this is some of her takeaway from this ruling:

Let’s start with the last one, what I called posture. Judge Henderson had originally not favored an expedited review. This order forces Trump into an expedited appeals process.

The Clerk is directed to withhold issuance of the mandate through February 12, 2024. If, within that period, Appellant notifies the Clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition of the application. The filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate, although the grant of rehearing or rehearing en banc would result in a recall of the mandate if the mandate has already issued.

The only way he can stop Judge Chutkan from issuing opinions on the remaining motions to dismiss filed last fall is if he immediately appeals to SCOTUS for a stay pending appeal, which he has already said he’d done. The only way he can get that stay is if five Justices say they think Trump will succeed on the merits and vote to grant the stay.

Steve Vladeck says that SCOTUS has a lot of options, but the two most likely are to deny the stay or to grant an appeal in this term, committing to an opinion by June...

Finally, I noted that Judge Henderson seemed to have concerns about the scope of their decision — what she described “floodgates” of follow-on charges. She at least considered the wisdom of limiting this opinion to a former President’s unofficial acts — in this case, defined as those of an office-seeker under Blassingame.

Rather than going Blassingame, though, the panel’s top line holding went Big.

The operative language in this opinion rejects the notion of Presidential immunity categorically as a violation of separation of powers.

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754...

Without any specific exemptions to relate, Wheeler is pointing out the appellate judges are leaving little wiggle room for the Supreme Court justices to give trump an escape route:

But they say if they did have to review whether the indictment charged Trump for official acts, the fact that so many of the alleged acts in the indictment pertain to Trump’s role as an office-seeker, and because Presidents have no role in election certifications, the indictment would survive that more particular review anyway.

This is the kind of out that Justice Kavanaugh took on a related issue, whether the interests of Congress in reviewing an attack on the election certification preempted any Executive Privilege claims.

That is, both the District and Circuit have already said that, if they were asked to consider whether this indictment withstands an immunity claim, it substantially would.

I have no idea what SCOTUS will do. But by producing a unanimous opinion with little surface area for Justices to grab hold, Judges Henderson, Pan, and Childs may have ended up producing the most expeditious result...

For myself, this is the key paragraph in the ruling (pg. 3) that underscores just how deep in trouble trump is:

Since then, hundreds of people who breached the Capitol on January 6, 2021, have been prosecuted and imprisoned. And on August 1, 2023, in Washington, D.C., former President Trump was charged in a four-count Indictment as a result of his actions challenging the election results and interfering with the sequence set forth in the Constitution for the transfer of power from one President to the next. Former President Trump moved to dismiss the Indictment and the district court denied his motion. Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

You can spot where the three judges are spelling out trump's culpability in the January 6th riots, by highlighting how the hundreds who rioted on his behalf have already faced justice themselves, and that trump is now due to face justice as well.

Best possible situation now is that the Supreme Court - lacking any legal loophole they can bring up in trump's defense - denies the appeal and lets the lower court ruling stand. They are well within their power to do so. They could still pick up this hot potato if they wanted to have the Highest Court In the Land put their imprint on the legal matter, but they would risk undermining the entire Constitution - destroying the checks and balances between the three branches - as the appellate court points out. And no matter what, they can't delay their ruling to save trump, as they're bound by the rules to get their decisions finalized by summer. Either they let trump run free - and destroy the rule of law altogether - or they let him face trial before the November elections.

Let justice be done. Let SCOTUS stand with the lower court ruling. Let trump face his day in federal court as soon as possible.

Preferably with a jury ruling on July 3rd so we can celebrate the next day with additional fervor.

"Just Let ME and ME ALONE Get Away With Everything," Begged trump

Today was a huge day in the American constitutional system when the appellate court considered donald "it's all about ME" trump begging the court to let him get away with EVERYTHING under his claim of "absolute immunity" while as President Loser of the Popular Vote (Twice) (via Carrie Johnson at NPR): 

In arguments that extended for more than an hour, three judges for the U.S. Court of Appeals for the D.C. Circuit pressed Trump's attorney on his sweeping claims of immunity from federal prosecution...

Trump has pleaded not guilty to four felony counts that accuse him of leading a conspiracy to cling to power and disenfranchise millions of voters in 2020. Prosecutors say that this culminated in violence at the U.S. Capitol three years ago that injured 140 law enforcement officers and shook the foundations of American democracy...

Prosecutors working for Smith say in court papers that if the U.S. Court of Appeals accepts Trump's sweeping claims, it would "undermine democracy." The special counsel team says such reasoning would give presidents license to commit crimes while in the White House, such as accepting bribes for directing government contracts or selling nuclear secrets to a foreign adversary.

James Pearce, representing the special counsel, argued Tuesday that "the president has a unique constitutional role, but he is not above the law." He added that a former president enjoys no immunity from criminal prosecution. To conclude otherwise, he said, would give rise to a "frightening" future.

No former president has ever been charged with a crime. Trump is the first. So an eventual ruling will be a landmark no matter which way the court rules. If the court sides with Trump, the federal case in Washington would be all but over...

Several conclusions from today's brief hearing as noted by Perry Stein at the Washington Post (paywalled):

...The judges seemed skeptical that presidential immunity extends as far as Trump’s lawyers claim it does.

Trump attorney D. John Sauer argued that presidential immunity means that a president cannot be prosecuted for any actions that fall under his presidential duties — unless the House first votes to impeach him and the Senate then convicts him.

Judge Florence Y. Pan, an appointee of President Biden, asked Sauer if a president could be criminally prosecuted if he ordered SEAL Team 6 to assassinate a political rival. Such a scenario — ordering the military to do something — would fall under presidential duties. But having a rival murdered would also be a clear violation of the law.

Sauer said the Justice Department could only charge the president for giving such an order if the Senate votes to convict him first. Pan also asked him whether a president could sell pardons or nuclear secrets without being prosecuted. Sauer responded similarly.

Pan seemed skeptical and said that conceding that a president can be prosecuted for official acts in any instance — say, after the congressional impeachment and conviction process — undermines the president’s presidential immunity argument.

“Given that you’re conceding that presidents can be criminally prosecuted, doesn’t that narrow the issues before us to, ‘Can a president be prosecuted without first being impeached and convicted?’” Pan said. She added, “Once you concede that presidents can be prosecuted under some circumstances, your other arguments fall away.”

The judges were clearly concerned that accepting Trump’s argument would open a Pandora’s box of horrible acts by future presidents that would go unchecked and unpunished.

Trump’s lawyer tried to convince the panel that the real danger was letting this case go forward and opening a door to future presidents operating in fear of being prosecuted when they left office.

Gee, making future Presidents realize they can be held accountable if they break shit? MORE of that, please.

2. The judges’ ruling could rely on their reading of the impeachment clause of the U.S. Constitution.

Lawyers for both sides and the judges spent a chunk of oral arguments debating the Constitution’s impeachment clause. Under Trump attorneys’ reading of the clause, a president can only be criminally prosecuted once Congress has voted to both impeach and convict him.

Congress had voted to impeach Trump for his actions around the Jan. 6 attack on the U.S. Capitol. The Senate then voted to acquit him. At the time, some Republicans said they were voting against conviction because they said the Justice Department could investigate and decide whether to charge Trump...

This becomes part of the circular Catch-22 that the Far Right argued that trump shouldn't be impeached if his conduct was criminal, but then that he shouldn't be charged with crimes because he should have been impeached.

But we've seen impeachment and how it doesn't work: It is too partisan a mechanism. Relying on impeachment for accountability would never happen if the corrupt President's party controlled Congress and refused to be bipartisan enough to vote for removal. Impeachment is a political tool, not a prosecutorial one. That argument also ignores how previous former Presidents facing criminal charges for acts done in the White House - Richard Nixon and Bill Clinton - still had that happen even though impeachment never removed them from office (Nixon resigned first and then took a pardon, and Clinton survived the Senate vote and pled out his perjury counts). Saying that impeachment triggers double jeopardy doesn't pass the established case law.

3. The judges questioned whether Trump’s actions around the Jan 6. attack on the U.S. Capitol qualified as his official presidential duties — and whether the appeals court should even decide this.

Sauer said Trump’s actions around Jan. 6 — including meeting with the Justice Department and members of Congress about his belief that the election was stolen — were part of his presidential duties.

He also said Trump’s Twitter social media posts, some of which encouraged people to go to the Capitol on Jan. 6, also constituted an official presidential communication channel.

“All of those tweets were obviously immune,” Sauer said.

In a notable exchange, Judge Karen Henderson, an appointee of President George H.W. Bush, seemed skeptical of that claim, saying: “I think it’s paradoxical to say that his constitutional duty to take care [that] the laws be faithfully executed allows him to violate federal laws.”

But she also raised the idea of sending the case back to the U.S. District Court to untangle whether Trump’s alleged acts were part of his official duties or discretionary and carried out in his capacity as a private citizen...

Judge Henderson may express that concern but it's uncertain if the other two on the panel will agree with her. This could prove a potential delay in the March trial related to this matter, but by the looks of it the whole panel isn't buying that inciting a mob to riot against Congress is part of the Executive's duties.

4. Trump attended the hearing in person, suggesting he believes his criminal prosecutions could boost his presidential bid.

One of the paradoxical problems with putting trump on criminal trial for his actions is that trump can use this to paint himself the victim of "the real crooks, the Democrats" even as he faces every likelihood of failing these appeals and finding himself in a federal court three months from now. trump is also using these trials as a means of keeping his MAGA supporters stoked and angry and ready to riot - again - on his orders should a Guilty verdict be reached before the November general election.

But trump is also powered by his narcissism. He showed up in court today as though his mere presence could intimidate the appellate judges into granting him the immunity he craves.

trump isn't interested in the legal ramifications of what he's arguing for - that a sitting President can never be held accountable for any actions committed during his tenure - he is only interested in making sure that immunity from the law applies to himself. That trump's arguments would clearly grant Joe Biden - the current sitting President - to apply that immunity by ordering a SEAL Team to assassinate trump doesn't seem to register in that Id of his. Probably because he's convinced Biden is too much of a political wimp - that Biden as a career politician respects the limitations of the office, and won't break actual laws no matter how much the Far Right lie to themselves about Biden being corrupt - to take the dark route to power trump aspires to take.

We have to remember: For decades trump has been thumbing his nose at the legal system as a businessman committing corrupt act after corrupt act, bankrupting his casinos, breaking contracts with workers, bullying victims to settle out of court, making a mockery of regulations because our prosecutors and oversight agencies never take white-collar fraud serious enough. trump is used to the idea of being immune from accountability, and he's struggling to come to terms with all the recent courtroom setbacks that are about to cripple his empire.

trump is hoping - begging even, although he'll never admit it - that the appeals court grants him that immunity, because it clears the electoral battlefield of the federal charges he's facing in DC and South Florida and makes it easier to defy the state-level trials awaiting him in New York City and Fulton County. Without that haunting him, trump can then attack Biden with impunity while his allies in the US House and Red states conspire to throw the Electoral College to trump in spite of the likely popular vote going Biden's way.

And if trump achieves all he desires, if trump regains control of the Presidency? With that belief in HIS absolute immunity, trump will run amok as a dictator the likes of which our nation's never seen (via Greg Sargent now at New Republic after the WaPo downsized him):

But there’s another way to understand Trump’s move: It’s about what comes next. If he wins on this front, he’d be largely unshackled in a second presidential term, free to pursue all manner of corrupt designs with little fear of legal consequences after leaving office again.

That Trump might attempt such moves is not idle speculation. He’s telling us so himself. He is openly threatening a range of second-term actions—such as prosecuting political enemies with zero basis in evidence—that would almost certainly strain the boundaries of the law in ugly new ways.

Now imagine him pursuing this project with a get-out-of-prosecution-free card in his pocket. “It really would permit him to be completely unconstrained if he were reelected,” Neil Eggleston, who served as White House counsel under President Barack Obama, told me...

It’s been said on social media that if Trump wins here, his second-term powers would be quasi-absolute—that he could order, say, the assassination of political foes with impunity. That overstates the matter. As former White House lawyers told me, if Trump prevails, the courts will likely affirm that actions within the “outer realm” of official duties are immune to prosecution, not that any actions (such as assassinations) are.

But a favorable decision could still unshackle Trump in a big way. Trevor Morrison, associate White House counsel under Obama, says the key is whether the courts rule that Trump has immunity on the theory that his alleged criminal conduct does fall in the outer perimeter of presidential duties—and how the courts define that perimeter. If they accept Trump’s broad version of immunity or something like it, he might argue that future potentially criminal acts also fall within that perimeter...

Kristy Parker, counsel at Protect Democracy who served as a lawyer in multiple administrations, notes that Trump has signaled clear intent to do exactly this sort of thing. He has attacked Willis’s prosecution of him as corrupt, hinted at full-scale persecution of “vermin” Americans who oppose him, and openly threatened to prosecute President Biden as retribution. “If I don’t get immunity, then Crooked Joe Biden doesn’t get immunity,” Trump recently raged.

In saying this, Trump essentially declared that if he is denied immunity, he will prosecute Biden on a fake finding of corruption, just as he invented corruption as a pretext for his alleged election crimes. What happens if those efforts to name and target fabricated corruption are in some sense deemed official acts?

“Trump has threatened to use the presidency to punish enemies, reward friends, and protect himself,” Parker told me. “If the courts recognize immunity for the broad array of official acts of the presidency, that will incentivize Trump to abuse those powers further...”

Gods help us if this happens.

FOR THE LOVE OF GOD AND DEMOCRACY AND THE RULE OF LAW, JUDGES, DO NOT GRANT trump ABSOLUTE IMMUNITY.

And for the LOVE OF GOD, AMERICA, DO NOT VOTE FOR trump.

Another trumpian Step Towards Dictatorship (w/ Update)

(Update: Thanks this time to Tengrain for linking this to Mike's Blog Round Up at Crooks & Liars. Do try to have a nice weekend during this Constitutional Crisis...)

So this is shamefully happening (via Richard Cowan and David Morgan at Reuters.com):

President Donald Trump was poised on Friday to declare a national emergency at the U.S.-Mexico border, a move that Democrats vowed to challenge as an unconstitutional attempt to fund his proposed border wall without approval from Congress.

Previous Presidents had issued national emergencies before, but usually within the confines of existing laws and regulations set by Congress to prevent overreach. Obama for example issued 12 emergencies, almost all of them involving foreign interventions and not exactly cutting into Congressional "power of the purse".  President Loser of the Popular Vote trump is explicitly pulling this maneuver to sidestep Congressional power over the budget and destroying the Constitutional concept of Checks and Balances in the process.

All because he doesn't want to be seen as a loser:

Trump was also expected to sign a bipartisan government spending bill approved by Congress on Thursday that would prevent another federal shutdown by funding several agencies that otherwise would have closed on Saturday morning.

The bill, lacking any money for his wall, is a defeat for Trump in Congress, where his demand for $5.7 billion in wall funding yielded no result, other than a record-long 35-day December-January partial government shutdown that damaged the U.S. economy and his poll numbers.

trump's excuses this afternoon did little to convince anyone that there is a crisis at the border: the flow of drugs won't be stopped by a border wall, there's no evidence of "chain migration" abusing our immigration system, and the needed reforms to the Lottery system aren't going to get answered by this move.

The horrifying truth is that trump has ached to grant himself direct powers that the Constitution doesn't grant Presidents (his dream of being a dictator like those he admires), and is seizing on the nature of the Emergency Powers set up by Congress back in 1976 to achieve that desire. trump does not care of the precedents he's creating with this move, where most critics - even Republicans - are worried if this move succeeds trump is giving license to future DEMOCRATIC Presidents to enact socialist/progressive reforms in spite of conservative obstruction in Congress. trump is likely convinced there will never be a Democratic successor, that he will somehow become Dictator-For-Life in spite of the 22nd Amendment (he can always issue an Emergency Order cancelling all future elections, after all why not) or even his own mortality (Gods help us if trump thinks he can pass on executive powers to his children).

trump is also ignoring the reality of his actions going to the Courts - already California has filed a lawsuit against it - but not the lawsuit part because he already admits he knew those would happen, trump only cares to create the illusion that his actions are giving him a major win. In spite of the polling that should tell him the Wall is a bad sell to the public, that it will give a rallying point for Democratic candidates against him in 2020, and that even his Far Right allies are attacking him for betraying their agenda of a harsher immigration policy (trump signed that budget which actually gave Democrats small victories on that front). All that matters to trump right now are the optics of "victory" and his personal ambition to become America's Biggest Dictator Ever (eat your heart out, Andrew Jackson!).

And while our nation's leader fiddle over fake "emergencies," we're coping this afternoon with a real National Emergency with YET ANOTHER MASS SHOOTING with at least five dead in Aurora IL (which is different from the MASS SHOOTING in Aurora CO back in 2012, CAN WE KEEP TRACK OF THESE MASS SHOOTINGS ANYMORE, AMERICA).

We're in the Darkest Timeline, folks. Every day gets worse until trump and his Republican enablers are driven out of power forever.

Some Thoughts On Obama Doing His Job and The Republican Senate NOT Doing Theirs

As noted earlier, Obama went ahead in spite of the open obstruction of the Republican-led Senate and nominated someone to fill the vacancy on the United States Supreme Court caused by the sudden passing of Antonin Scalia.

Obama tapped Merrick Garland of the DC Appellate Court to fill the position. Garland has been serving as a federal judge since 1997, two years after he'd been nominated because back then the Republican-controlled Senate was arguing over whether to fill any of Clinton's judicial vacancies at all. Yeah, we've been there... 

So of course, Obama fulfilled his Constitutional obligation to fill Supreme Court vacancies as established in Article II Section 2 of the highest law in the land. Above that, he fulfilled his obligation to the American people to nominate a candidate with excellent credentials in Garland: a federal-level judge with over 18 years of experience and a record of jurisprudence that impresses a good number of legal experts. 

And as expected, the Republicans are being total d-cks about it.

Senate Majority Leader McConnell is refusing to meet with Garland at all, and the party leadership in that branch of Congress is likely to shut the doors to the committee rooms for even a hearing on this.

It's their own damn fault. They decided seven years ago to hold a line against Obama regardless of what Obama does. The Republicans went full obstructionist to deny him any possible victory, first to try and make him a One-Termer President, and then to make history view him as a Failed President.

And it hasn't really worked, has it? For all the failures Obama did endure thanks to that obstruction, the Republicans repeatedly caused more damage to themselves, hurting their own party leadership - hi, Castor! hi, Boehner! hi, Mitt! hi, Jeb? - and creating a toxic environment that's led to the Far Right wingnut base in near-revolt against their own party.

Yet the Republicans are screwed if they DIDN'T do this, when you consider this is an election year, and 20-some of the Republicans are up for re-election (I know Rubio dropped to run for the Presidency - HA! - so his seat is open, I'm not sure if there are others). And some of those Senators are facing primary challengers who are further to the Right than they are... and some of them are already losing. They can't afford to give anything to Obama now, having tried all these years to deny him. It'll kill them in the Primaries... just as much as this obstruction can kill them with Moderate voters in the General elections. 

They've really caught themselves in a kind of lose-lose scenario.

As I noted over on Balloon-Juice:

1) It puts the Senate on the defensive in that there’s nothing legally objectionable to Garland. He’s served on the appellate court for more than a decade with few if any complaints. If they still refuse to even meet with him, it clearly puts the Republicans in a bad light during an election year, going against the polls that clearly show a majority – Republican voters included – who want the Senate to at least do their damn job to advise and consent.

2) It still shifts the dynamic of the Court (that is, if he actually gets approved). While Garland’s no liberal, he’s more aligned left-center than Kennedy (the current measuring stick of a Moderate justice). More 5-4 decisions will favor the Left over the Right.

3) Garland is not young, granted. If it was someone younger, the GOP would have an even bigger conniption knowing full well that would be a guy on the bench for 20+ years, not 10-15 years. There may be a few Senators who can convince themselves “this isn’t going to kill us a decade from now.”

4) Obama likely asked his candidates how many were willing to risk a year of waiting for the nomination. The younger ones likely begged out to wait for a better shot.

5) While Obama could have gone full “NO F-CKS TO GIVE”, he played it steady, reviewed the options, and presented a sane, respectable choice. This is still a “F-CK YOU” move on his part, though, because clearly the Republicans are going to go batsh-t insane no matter what he did (as I said elsewhere, that's the beauty of it. Obama stays cool, but the Republicans are going to view this as a F-CK YOU move and over-react. And they have...). At least this way he can’t be accused of intentionally messing with their heads by going for a Gay Asian Public Defender still six months away from a Law Degree from Berkeley Hippie Central who’s six months pregnant with a Muslim.

And then on a separate post:

This time might be different. Holding a SCOTUS vacancy hostage like this during an election year exposes too many Senators up for re-election. They can’t rely on gerrymandered safety: their entire state votes, and in Blue and Purple states the moderate and centrist voters are not going to be thrilled that ONE branch of government – CONGRESS – isn’t doing their job.

They can’t blame Obama for being in the wrong here, because he’s done everything by the book and nominated a candidate with genuine experience and legal gravitas (this isn’t a Meirs debacle, nor a Bork extremist). Meanwhile, it’s the Senate refusing to do their job and coming up with lame excuses – the “Biden rule?” the “Lame Duck” excuse? – that the majority of voters will not buy.

I hope to God the Democrats are running candidates in every Senate race this year. They might even win in a few solid Red states – both because of Trump killing the down-ticket and because of this – and regain control of the Senate with a Cloture-proof majority.

Please tell me every Senate seat is gonna be contested this year. Every single one, I hope to God the Democrats win all 34. Not just because of Trump but because enough voters across all our states wake up to which Party (Republicans) are in the wrong here.

About the Constitution: It IS a Feature, It IS a Bug In the System, It ISN'T Fatal

One of the blogger/editors you need to read often (and who doesn't publish often enough) is The Atlantic's Yoni Appelbaum.  When he publishes something, it's a well-researched, citation-backed article delving into a particular issue and breaking down the arguments in a concise, readable way.

Appelbaum's current article is on a topic I hold dear: our nation's history and the founding of the Constitution that makes the United States of America (and its three branches of federal government) what it is.

To Appelbaum, it's a flawed and fragile jewel of sorts, one that the Founding Fathers failed to design as a durable foundation:

The system isn’t working. But even as the two parties agree on little else, both still venerate the Constitution. Politicians sing its praises. Public officials and military officers swear their allegiance. Members of Congress keep miniature copies in their pockets. The growing dysfunction of the government seems only to have increased reverence for the document; leading figures on both sides of the aisle routinely call for a return to constitutional principles.

What if this gridlock is not the result of abandoning the Constitution, but the product of flaws inherent in its design?

He's getting into the Checks And Balances aspect of our government, and primarily into the splitting of power between a President (executive) and Congress (legislative).  (The Judiciary's role as Judge/Arbitrator between the other two branches in this matter is limited)  He focuses on the Presidency in particular, a game-breaking political force that could (and has) wield remarkable unilateral authority when needed.

When, in 1985, a Yale political scientist named Juan Linz compared the records of presidential and parliamentary democracies, the results were decisive. Not every parliamentary system endured, but hardly any presidential ones proved stable. “The only presidential democracy with a long history of constitutional continuity is the United States,” Linz wrote in 1990. This is quite an uncomfortable form of American exceptionalism.

Linz’s findings suggest that presidential systems suffer from a large, potentially fatal flaw. In parliamentary systems, governmental deadlock is relatively rare; when prime ministers can no longer command legislative support, the impasse is generally resolved by new elections. In presidential systems, however, contending parties must eventually strike a deal. Except sometimes, they don’t. Latin America’s presidential democracies have tended to oscillate between authoritarianism and dysfunction...

To Appelbaum, the flaw is that there exists the possibility of deadlock.  The Founders did intend, from what we've read of their arguments on the matter, to use deadlocks as a means of putting the brakes on reckless legislation or executive actions that would otherwise occur in a parliamentary system.  Also, to use the threat (or reality) of deadlocks to enforce compromise between the sides to ensure enough people are satisfied (or dissatisfied, which also works) with the results.

The flaw for Appelbaum is allowing those deadlocks to evolve into outright obstructionism.  Something we're seeing today as one branch of government - the Legislative - collapses in on itself in a wave of obstruction over partisan rancor.

Until recently, American politicians have generally made the compromises necessary to govern. The trouble is that cultures evolve. As American politics grows increasingly polarized, the goodwill that oiled the system and helped it function smoothly disappears. In 2013, fights over the debt ceiling and funding for the Affordable Care Act very nearly produced a constitutional crisis. Congress and the president each refused to yield, and the government shut down for 16 days. In November 2014, claiming that he was “acting where Congress has failed,” President Obama announced a series of executive actions on immigration. House Republicans denounced him as “threatening to unravel our system of checks and balances” and warned that they would cut off funding for the Department of Homeland Security unless Obama’s actions were rolled back. For months, the two sides faced off, pledging fealty to the Constitution even as they exposed its flaws. Only at the 11th hour did the House pull back from the edge.

Strikingly, in these and other recent crises, public opinion has tended to favor the president. As governments deadlock, executives are inclined to act unilaterally, thereby deepening crises...

Appelbaum is correct in that our current political malaise is based on the structural flaws of our Constitution: there are no emergency powers to override one branch of government when one party driven by reactionary dogma controls that branch and abuses the rules into a paralyzing gridlock.

As a side note: It's interesting that Appelbaum is arguing about the disproportionate powers of the Executive branch in times of deadlock, but that the causes of our current deadlock woes are all on a one-party-rule Congress refusing - including excessive vacationing as outright job avoidance - to do its job.  I can see where he's concerned that the President in these circumstances could say "to hell with it" and go into Full Dictator mode like a Caesar of old, but the core problem is still with a lazy and broken Congress... Again, I digress.

However, I disagree with Appelbaum on one point: the flaw in our government's Constitution isn't fatal.  It's a serious weakness, granted, but it's one that can be fixed.

It can be fixed because as much as things change, there is always (except for one exception, hello 1860) some moment or some twist in the ongoing historical narrative that is the present day that breaks the gridlock.  I'm not talking some kind of Deus Ex Machina, but about an external or internal shift of events that "wakes up" the political elites - the patrician class that holds the real power in the nation - into making the necessary reforms to end that crisis and ensure future crises do not return.  I'm thinking back to such moments as the Progressive Era at the start of the 20th Century which was a response to the decades of Gilded Age greed and social inaction on women's rights; back to the New Deal era reforming federal government into a regulator of our fiscal and business needs; back to the Civil Rights reforms in the 1960s to end a century of Jim Crow segregation.

It can be fixed because when this happened before - when the system broke down enough during the Civil War - the majority of Americans still worked for repairing and rebinding the nation back to what it was.  Partly to rub the salt in the wounds of the secessionists who lost, but mostly because Americans saw (still see) America as a whole and unified nation despite the disagreements.

And it can be fixed because our nation's Founders were smart enough and hopeful enough to establish the means to Amend the Constitution itself.  That is a step of Last Resort, of course, and difficult to manage.  However, if the crisis becomes that obvious, our nation has shown in the past it is capable of making the effort to amend the flaw and get government working again.  That the amendment process even exists is an example of faith: the men of power 200-plus years ago trusted future generations to see to making repairs when they were needed.

There will come a moment when the gridlock ends.  The causes of this current crisis - the unresponsive House designed by rampant gerrymandering, a Republican Party consumed by hardening Far Right ideologies against women's health rights and immigration - can't last forever: simple demographics will see to part of that by 2020, and a growing state-level push for election reforms will see an end to gerrymandered "safe" districts sooner rather than later.  The restrictive limits of an obstructionist faction historically have a habit of collapsing on themselves (the purity purges), and we are getting signs of the Far Right Republicans about to implode over their inability to compromise even among themselves.

There is going to come a point when the need for reform is so obvious that every level of society from rich to poor will agree to its passage.  And the ones who refuse to see it either remove themselves from the equation to ensure its passage or else pursue a destructive course that ends up hurting themselves (although others can get hurt in the process).

A lot of this doesn't even involve the Amendment process, although once reformers gain power in Congress and the White House (and enough states) they are likely to codify their reforms with an appropriately-worded amendment to ensure the safety of our nation's well-being to future generations.

Future generations who will likely complain about the deadlocks in government they're facing when it's their turn to question what's broken in the Constitution and what needs to be done about it.  Heh.

I'm not being flippant about what Appelbaum writes: he is correct in that our current political woes are due to failings in the Constitution and that there's a possibility these failings can get worse.  I'm noting we've been able to fix and reform the Constitution before and that we're able to do so again.

I'm just saying there are alternatives to letting it all fail: I'm just saying we need to start fighting to get those fixes in place, and removing the blockage of obstructionism causing damage to our nation.

I am, again, saying we need to stop voting into office the party responsible for all this obstruction in the first place.  Yup.  Please please please, stop voting Republican.