Defending The Rule Of Law

As the Trump administration careens drunkenly from outrage to outrage, laying waste to the American Idea, there is one “through line” to the Dear Leader’s petulant and bizarre Executive Orders and (ungrammatical) pronouncements: virtually all of them violate the laws of the land. (My husband will read of some Trumpian action and ask me, “Can he do that?” and my response is usually, “It’s against the law, if that matters.”)

The Constitutional crisis we are currently experiencing is Trump’s disregard–not just for the laws he is ignoring–but for Court orders requiring him to obey them.

I don’t know how this crisis will turn out. I have hopes that the increasing numbers of protests will encourage at least some Republican Senators and Representatives to re-grow their spines (although here in Indiana,  Senator Jim Banks–a dim, smug self-proclaimed Christian Nationalist–is beyond hope). In the meantime, there are emerging signs that the legal community is prepared to defend the rule of law against our Mad King and his merry band of lunatics.

I was particularly pleased to read a Fourth Circuit Court of Appeals decision authored by Judge J. Harvie Wilkinson III, because it confirmed a point I’ve repeatedly made on this site: whatever descriptors you want to apply to Trumpism and MAGA, “conservative” isn’t one of them.

As Josh Marshall wrote at Talking Points Memo 

If you had told me in 2005 that 20 years hence federal appeals court Judge J. Harvie Wilkinson III would be writing a paean to our lost liberties and freedoms under a Republican president, I may have politely suggested you seek some help.

The entire order is worth reading. Wilkinson clings to the hope that the judiciary’s “brethren in the Executive Branch” will recognize that the rule of law is “vital to the American ethos.”

Wilkinson’s defense of the rule of law is being joined by individual lawyers. R. William Jonas, Jr., a partner in a law firm in Mishawaka, Indiana, recently shared the following letter he’d written to the Indiana Bar Association.

I write today as a member and Past President of the Indiana State Bar Association, and as an officer of the court who swore on Oct. 9, 1981, to support and defend the Constitution of the United States and the State of Indiana. To fulfill my oath, I write today in the wake of the decision of the U.S. Court of Appeals for the Fourth Circuit attached here.

The U.S. government “snatched” Kilmar Abrego Garcia from his home state of Maryland, and, in utter disregard of his constitutional right to due process and a specific court order, and transported him to an infamous prison in El Salvador where it is now claimed that he is beyond the power of our courts. We know from reading the Fifth Amendment that “no person shall be deprived of life, liberty or property without due process of law.” And “no person” means exactly that – it includes everyone from Jesus Christ and the twelve disciples to Jeffrey Dahmer, Ted Bundy, John Wayne Gacy or Gertrude Baniszewski.

 It is the duty of the Indiana State Bar Association, to speak in support of the opinion of the court and the right of due process which is at the very heart of the rule of law. Some might say that we should be silent because we shouldn’t be taking political positions or because it might cause people to terminate their memberships. To these folks, I say that we all have sworn to uphold the constitution and the rule of law. This association is rightly proud of its efforts to promote leadership through the Leadership Development Academy and civic education through the Indiana Bar Foundation’s civic education program “We the People: The Citizen and the Constitution.” If we remain silent, what message do we send about leadership? About civic duty? If not us, who? If not now, when?

              Judge Wilkinson wrote

It is, as we have noted, all too possible to see in this case an incipient crisis, but itmay present an opportunity as well. We yet cling to the hope that it is not naïve to believeour good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Now is the opportunity for the ISBA to speak up in support of the right to due process and the rule of law, and to urge the local bars of Indianapolis, Evansville, Allen County, Lake County and St. Joseph County to take similar action. It is an opportunity to urge the faculties of Indiana’s law schools to join the chorus – as Judge Wilkinson says “while there is still time.”

Now is the time for all of us to speak up–and resist.

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The Root Of The Problem

I know, I know…I’ve repeatedly opined that the “root of the problem” is racism (defined as fear and loathing of all “Others”–including not just anti-Black and anti-Jewish animus, but the White Christian Nationalist effort to put women back in the kitchen and send immigrants with less than alabaster skin tones back to the “shithole” countries from which they came.) And I stand by that allegation.

That said, the current eruption of those long-simmering hatreds has been enormously facilitated by the information environment we inhabit.

In one of his daily newsletters, Robert Hubbell shared an observation that struck me as very true: he noted that, for MAGA Republicans, “truth is a pesky annoyance to be circumvented.” But government and the rule of law are dependent upon a polity that shares a “common view of facts rooted in reality.”

The Internet has been an incredible boon to humanity; it has allowed people to access virtually all of the information produced by mankind. It has made our lives more convenient–whatever one thinks of Jeff Bezos, old folks who can’t get out to shop, people who for one reason or another cannot drive, can order needed goods with a click and have those goods delivered to their doors, an enormous benefit. (Note: that online ordering need not be confined to Amazon.) 

The Internet has also enhanced free speech in a number of ways. For one thing, it frustrates efforts at censorship–as the scolds who try to remove books from school libraries have found. (Tell a teenager “you can’t read this book” and more often than not, you’ve piqued her interest in that book, which she can access easily enough via the Internet.) 

I could go on enumerating the positives of our new human connectivity. But like almost every aspect of human progress, there are downsides, and one of the most concerning is the immense growth of what we politely call “disinformation,” and what is more accurately called lying. Conspiracy theories. Propaganda. 

Let’s be honest–the Internet has made it possible to live in a chosen bubble, to inhabit an information environment that has been carefully curated to reinforce what a particular individual wishes to believe. That ability is steadily eroding the importance of empirical fact.

Over the long haul, it is likely that choosing to live in a world where “facts” are irrelevant is risky. Individuals who prefer to believe RFK, Jr’s fact-free animus toward vaccination die more frequently than those who accept medical science. Those who reject the humanity of people who are “different” live more fearful and far less interesting lives than the people who embrace diversity and learn from it.

If the negative outcomes were limited to the people making fact-free choices, the rest of us could shrug and leave them to their own (constricted) worldviews. After all, there have always been people who live in fantasies of their own construction, always been conspiracy theorists and science deniers. As a doctor/cousin of mine likes to say, there’s always been a market for snake oil.

But the Internet has vastly expanded the availability and reach of that snake oil. It has enormously facilitated the ability to inhabit a bubble that confirms one’s desired reality. In an increasingly complicated world, the temptation to retreat from that complexity also becomes greater. (Nor is that temptation limited to low-information citizens.)

For all my adult life, I have been a firm and vocal supporter of free speech–not because all speech is valuable, but because allowing government (or any authority) to decide what speech is allowable would be far–far–more dangerous than stupid, false, obscene or incendiary speech itself. The advent of the Internet and thousands of sites promoting propaganda and worse hasn’t changed my analysis. But it is impossible to ignore the fact that “alternate realities” available online do vastly greater damage than similar fantasies peddled via pamphlets or even by radio “personalities.”

Ultimately, the only counter-measure I can envision is better education. Better civic education, better instruction in logic, more instruction in how to determine the credibility of Internet reports. But that’s “ultimately.” I don’t know what we do today to counter the vast amounts of (excuse my language) horse-shit coming from MAGA and Trump and the Christian Nationalists. 

Let’s face it: the people who voted for Donald Trump do not occupy a fact-based reality. And thanks in large part to a vast Right-wing information ecosystem, there were enough of them to plunge America into the dark age we are experiencing.

We can only hope that when reality bites, it will be hard enough to waken enough of them…

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The Problem With Mad Kings

Back in 2009, I wrote a book titled “Distrust, American Style,” in which I explored the role of trust in government and civil society. My research for that book involved dipping into the considerable scholarship on the subject, and confirmed the immense importance of trustworthy behavior by both governments and the various elements of our society. I traced the negative effects of then-emerging examples of untrustworthy behaviors–by businesses like Enron, by a variety of sports figures, and by religious figures. (Catholic Church scandals were in the news daily.)

I did not, however, turn my attention to the importance of trust to national economic performance. Paul Krugman has recently filled that void, explaining the likely, significantly negative consequences of having a madman and would-be king occupying the Oval Office.

Krugman began by focusing on the stupidity of the law firms that “bent the knee” to our mad king–pointing out what should have been blatantly obvious (and raising doubts about the intellectual and analytic bona fides of the fat-cat partners who cowered before Trump’s patently illegal threats.)

Less than a month ago many of America’s biggest law firms made deals with the White House in which they promised to end diversity, equity and inclusion (DEI) practices and to devote substantial resources to pro bono work on causes the administration supports. It was a shameful capitulation.

It was also stupid. Anyone who looked either at Donald Trump’s personal history or the history of authoritarian regimes in general would have realized that there’s no such thing as a deal with this administration. Whatever you think Trump and co. have agreed to, they will feel entirely free to make new demands whenever it suits them.

Those firms should have known that giving in to Trump just signals weakness, which leads him to demand further concessions.

Then Krugman explains why Trump’s mercurial behaviors are such a threat to the American economy. U.S. efforts to build an anti-China trade alliance are doomed to failure, Krugman says,  “Because nobody with any sense trusts the Trump administration to honor the terms of any deals it makes, whether they’re deals about pro bono work with law firms or tariff deals with other governments.”

And as more and more people realize that Trump and his minions can’t be trusted, the damage will spread from trade to finance. The international role of the dollar and, eventually, America’s ability to service its debt are very much at risk.

Why can’t Donald Trump be trusted? Partly because he’s Donald Trump. But even if he weren’t, absolute monarchs — which is what Trump is trying to become — are fundamentally untrustworthy. The ruler may sometimes choose to honor his promises, but it’s always his choice — a choice that can be changed at any moment. And his untrammeled power makes the nation he rules weaker, not stronger.

Krugman uses historical examples to buttress his central argument that reliance upon a nation’s commitment to the rule of law–a commitment that promises stability–is central to economic growth and prosperity. And as he says, Trump will be unable to make trade deals because nobody trusts his promises.

The international role of the dollar depends in significant part on the belief that the U.S. government can be trusted to behave responsibly. “Among other things, international investors normally assume that the president will respect the independence of the Federal Reserve and refrain from, say, arbitrarily rewriting the terms of federal debt.”

Krugman ends his economics lesson by writing that, “Even now, I don’t think businesses, investors and the public in general fully appreciate what it means that we’re all subject to the whims of a mad king. But they’ll learn.’

Actually, there are indications that the more sophisticated investors and businesspeople are beginning to understand the enormous consequences of installing this madman in office, and of surrounding him with sycophants and clowns unable to restrain his incoherence.

But I’m quite sure Krugman is correct when he says that the public in general doesn’t “get it.”

A couple of days ago, I quoted Frederich Hayek for his analysis of the conditions giving rise to the emergence of “the worst.” They were 1) a dumbed down populace, 2) a gullible electorate, and 3) scapegoats on which that demagogue can focus public enmity and anger. MAGA voters have proved Hayek prescient. Millions of Americans lack even rudimentary civic and economic literacy, and have been kept gullible by media outlets that tell them what they want to hear.

And as a recent Facebook meme has it, “This is all so unfair to people who were just voting their racism.”

Sic transit America…

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What Do We Tell Our Grandchildren?

Well, I see that Trump’s effort to remake America into a gulag has claimed another victim: Americorps. 

If you are unfamiliar with Americorps, a recent description from the Brennan Center might be helpful.

The 1994 launch of AmeriCorps—the nation’s premier public service program, a sort of domestic Peace Corps—was one of former President Bill Clinton’s signature achievements. The program aimed to harness the idealism and spirit of service of thousands of Americans eager to contribute time and energy to addressing pressing national and community problems in a hands-on fashion.

That basic vision continues today in the efforts of some 80,000 mostly young AmeriCorps members, who receive minimal living expenses and a modest education stipend (currently $5,815) in exchange for an intense year of work. They perform tasks like tutoring struggling schoolchildren and helping out with after-school activities at under-performing schools; cleaning up parks and other public lands; providing help to veterans and their families; and responding to hurricanes, floods, tornados, and other emergencies. No program, especially one so large and challenging, is perfect. But for most participants, it’s a life-changing experience, one that can help open doors to post-AmeriCorps jobs and careers. The current funding level is $386 million, the same as for fiscal 2016. The agency’s overall allocation is a little more than $1 billion.

I can confirm that reference to “life changing”–my youngest grandson took his gap year as an Americorps volunteer. He was always a good kid–did well in school, didn’t get into trouble, and displayed the sort of empathy currently missing from our federal government–but that year saw enormous maturation. He worked (hard!) with an assortment of young Americans who came from a wide variety of backgrounds, and became newly appreciative of his own privilege. 

That grandson is graduating from college next month. He had initially hoped to work in government, but Trump’s election took that option off the table. He will join an entire cohort of young people graduating into a newly chaotic economic environment, and a threatening political and civic one.

Frank Bruni recently addressed the dilemma of these graduates in a column for the New York Times. I think he spoke for millions of us when he wrote,

It’s a hell of a thing to be surrounded by college seniors a month away from heading out into this new America, a land of malice and madness. My fellow professors and I are supposed to have nuggets of optimism at the ready, gauzy and gooey encomiums about infinite possibilities, the march of progress and that apocryphal arc, the one that bends toward justice. But all I’ve got is the metastasizing pit of fear in my own gut.

In his conversation with students, BruniI recalled the anxiety and uncertainty he’d experienced at their age, what he described as “the gnawing suspense of being on the threshold of adulthood with no clue what it had in store for me.” He confessed an inability to imagine that flux of emotions in a political moment like this one.

College students throughout the country made all sorts of decisions and nurtured all kinds of expectations based on one version of America only to encounter, less than three furious months into Trump’s second presidency, a much, much different one. It’s a situation suffused with bitter ironies: Those students have often been caricatured and vilified for not seeing enough good in America — for focusing on its betrayals rather than its ideals — and now they’re watching its leader betray those ideals daily, hourly, with a shrug or a smirk or, at least metaphorically, a cackle.

Bruni enumerates just a few of Trump’s betrayals: his calculated abandonment of a man consigned to a hellhole in El Salvador because of an administrative error, his “morally perverse assertions that Ukraine is evil and Russia rightly aggrieved, and his pardoning of the savages who smashed their way into the Capitol and bloodied police officers on Jan. 6, 2021.” 

How do we counsel these young people who are encountering, as Bruni says, not merely a change in the rules but the collapse of decency and dignity? What do I tell my own grandchildren, who were raised by a bunch of lawyers and educators and are painfully aware of the severity of the current assault on American values?

What– Bruni asks-is the fallback for a teetering democracy?

The only answer I can muster is to redouble our fidelity to the values exemplified by Americorps and the thousands of other government agencies and nonprofit organizations working to make life better for those who are less fortunate. 

Refuse to submit. Be one of the good Germans.

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Why Government Grew

Among the many things that drive me up the wall (I’m close to the ceiling most of the time) is the common inability to distinguish between bigger government and inappropriately intrusive government. What the Founders feared was a government that invaded the individual liberties of citizens, not a government that established new agencies to deal with new problems.

This isn’t, I hasten to say, a misconception held only by Republicans. I still remember a friend who worked for the state during the Evan Bayh administration. His small agency was addressing the then-emerging problems of HIV. The federal government instituted a program that would have paid to place two more desperately-needed personnel in his agency–including the overhead costs of their employment. He was told he couldn’t take advantage of that program because Bayh didn’t want exposure to the accusation that state employment had increased during his term in office.

I think about that persistent bias against numerical growth–the very common inability to differentiate between the growth of power and authority and an increase in manpower–whenever I read about Musk’s determination to slash the size of government while blithely erasing limits on its authority.

A recent New York Times essay provided a perfect example of the difference–and a brief demonstration of how government growth occurs and why the Trump/Musk assault is so dangerous.

In the late 19th century, the government chemist Harvey Washington Wiley proved several shocking suspicions about the American food supply as correct: Milk was routinely thinned with dirty water, coffee contained bone, ground pepper was full of dirt, cocoa was packed with sand, and cayenne was loaded with brick dust.

The findings turned Wiley into a crusader for food safety, and by 1906 Congress finally agreed that regulations were needed. With the passage of the Food and Drugs Act and the Meat Inspection Act, the United States created the framework for a federal system to test ingredients, inspect food factories and recall unsafe products.

This system has been criticized as seriously underfunded and often overcautious. But it has prevented a return to the fraudulent and poisonous food supply of the 19th century, which one historian called the “century of the great American stomachache.” That is, until recently, when the Trump administration began to unravel that safety net.

When this nation’s Founders wrote the Constitution, most Americans still grew their own food. If mom wanted to cook chicken for dinner, she was likely to go out in the yard and wring the neck of one of her flock; if that chicken was ill, the consequences were her responsibility. When food preparation became an industry, responsibility for product safety became a communal issue. The representatives of We the People decided (properly, in my view) that government had an obligation to regulate that production.

Our mad king doesn’t recognize that responsibility, and we are all endangered by the heedless effort to reduce government employment and responsibility.

Along with its other ill-considered actions, the administration has been targeting food safety programs for “downsizing.” As the linked article notes, last month two Department of Agriculture advisory committees that had provided guidance on fighting microbial contamination of food as well as meat inspection protocols were simply shut down. (If that wasn’t dangerous enough, the administration also expanded the ability of some meat processors to speed up their production lines–a provision that makes it more difficult to carry out careful inspections.)

The administration also delayed a rule that would have required both manufacturers and grocery companies to quickly investigate food contamination and pull risky products from sale. At the start of April, thousands of federal health workers were fired on the orders of Health and Human Services Secretary Robert F. Kennedy Jr.; a plan called for terminating 3,500 employees at the Food and Drug Administration — a move that he welcomed as a “revolution.” Consumer watchdogs and others described it as a safety blood bath.

Of course, it isn’t just food safety. Or drug efficacy. The Founders didn’t envision an FAA, either. Forgive me for wondering whether the recent rash of air mishaps is connected to the “downsizing” of that agency. And while the MAGA morons dispute the reality of climate change–okay, the utility of science generally–the EPA also protects the water we drink and the air we breathe from industrial pollution, among other things that didn’t exist in the 1700s. The list goes on.

The threat to individual liberty doesn’t come from the employment of officials to monitor food and drug safety, or oversee air traffic. The threat comes from autocrats unwilling to respect the constraints of the Bill of Rights.

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