Edging Closer To The End Of American Democracy
Our democracy is under a three-pronged assault, from the judicial branch, from the executive branch, and from the legislative branch, and that assault is being driven by one of our two major parties in a quest for unchallenged power. Since those three branches that are supposed to be the checks and balances that protect our democracy are actually working to destroy it, the last ray of hope for that democracy is we, the people.
In oral arguments yesterday, it became apparent that the five conservative justices on the Supreme Court seemed inclined to allow the Commerce Department to add the citizenship question to the 2020 census. This inclination is remarkable when the evidence in the case is considered.
First, Wilbur Ross and the Commerce Department were virtually instructed by the White House, Steve Bannon and Kris Kobach in particular, to add this question. But Commerce needed a legal rationale for adding the question. In order to get that lawful rationale, Ross asked the Justice Department to request the change in order to help it provide more accurate data for enforcing the Voting Rights Act (VRA), which it eventually did.
Unfortunately, internal Census Bureau analysis showed that the current citizenship information they were receiving for enforcing the VRA would be more accurate than what would be provided by adding the citizenship question to the Census. More importantly, Ross was also warned that adding the question will seriously degrade the accuracy of the Census which is constitutionally required to count all persons, not just citizens, in the country, potentially reducing the response rate by over 5%. Nevertheless, Ross overruled his staff and ordered the question be added. Ross then was called to testify to Congress about adding the question. He lied to Congress about the source of request for the question, insisting it had come, unprompted, from the DOJ. In addition, he also lied about the accuracy of the data to be used to enforce the VRA and the accuracy of the Census with the question added.
Litigation over the question began as soon as Ross announced his decision. And, as with all things in the Trump administration, the efforts to derail that litigation were constant. The administration went to court twelve times in eleven weeks in order to stop New York state’s lawsuit. It went to the Supreme Court to block Ross from having to be deposed in another case, a plea the Court granted. The administration also took the unusual step of bypassing the Court of Appeals and taking their case to the Supreme Court. Even more unusual was the Court’s decision to usurp the powers and privileges of those lower courts by accepting those direct appeals.
Even so, three lower courts have struck down the legality of adding the question, sometimes in pretty harsh language. One judge wrote “hundreds of thousands—if not millions—of people will go uncounted in the census if the citizenship question is included…That undercount, in turn, will translate into a loss of political power and funds, among other harms, for various Plaintiffs”. In addition, he added that Ross “alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him” and had engaged in “a veritable smorgasbord of classic, clear-cut APA [Administrative Procedures Act] violations”. Another court wrote that adding the question “threatens the very foundation of our democratic system” and would be “fundamentally counterproductive to the goal of obtaining accurate citizenship data about the public”, adding that it would violate the constitutional requirement to count “the whole number of persons in each State”. It also excoriated Ross, writing that his decision to add the question involved “a cynical search to find some reason, any reason, or an agency request to justify that preordained result” and “was arbitrary and capricious, represented an abuse of discretion, and was otherwise not in accordance with law”.
In light of all of the above, it was surprising to see the five conservative justices so amenable to adding the question in oral arguments yesterday. Chief Justice Roberts seemingly ignored all the legal violations Ross engaged in in order to add the question as well as the data that showed that adding the question would actually reduce the accuracy of the constitutionally required mandate for “counting the whole number of persons in each state”. Instead he focused on the invented pretext for the question, asking why adding it would not result in better enforcement of the VRA. Kavanaugh and Gorsuch cited all the other countries that do ask the question, including a recommendation to do so by the UN. Kavanaugh opined that Ross’ decision was a mere “policy judgement” and implied that, as such, the agency should be given deference. And Alito couldn’t understand why adding the question would reduce the accuracy of the count.
All of these questions barely pass the laugh test and give lie to every conservative judicial principle the conservative justices supposedly adhere to. Roberts has spent his entire career, both on and off the Court, in a quest to destroy the VRA. Conservative justices have considered international law and the laws of other countries irrelevant to their job of interpreting the Constitution. Most of the conservative justices are determined to destroy the concept of agency deference, perhaps this term or next. And, of course, the very idea of originalism would require that most accurate Census count possible.
But all of these considerations might be thrown out to reach the political result that will consolidate the power of the Republican party. That is because any Census undercount resulting from the addition of the question would come in predominantly Democratic constituencies. That would effect those areas in potential redistricting after 2020, reducing their political power, and also reduce the amount of federal dollars allocated to those undercounted districts. But the even more nefarious purpose of getting this citizenship data is that several red states legislatures have indicated they are considering basing their redistricting after 2020 on citizenship rather than population. In both cases, at the federal and state level, it would be Democratic constituencies that would be underrepresented and more power would shift to more Republican, and let’s be honest, whiter constituencies.
Oral arguments are not necessarily indicative of what the final Court decision will be. And Roberts has certainly been known to abandon any principle if he thinks it will too adversely effect his legacy. But if the Court rules for the administration in this case, with the overwhelming evidence against adding the question that has been presented, it is frightening to think what their future decisions on voting rights, abortion, gun control, and congressional oversight, all critical cases soon to be in front of the Court, will be.
At the executive branch, we have a criminal President. He is already an unindicted co-conspirator in a criminal campaign finance scheme in order to prevent damaging information about him from reaching the public before the 2016 election. Robert Mueller has essentially stated that he engaged in attempts at criminal obstruction of justice and witness tampering in the Trump-Russia investigation, importantly adding that his obstruction and encouragement of others to do the same materially effected the investigation of a conspiracy between the Trump campaign and Russia.
We have a President who is denying the very principle of congressional oversight. He is attempting to prevent any of his advisers, past or present, to testify to Congress about events that would provide evidence of his crimes. He is suing to prevent Don McGahn from testifying about his numerous attempts to obstruct justice. He is preventing a White House official from testifying about how and why he overruled all staff and security recommendations and provided security clearances for the President’s family, who have been shown to use that information to advance their own personal business interests. He is refusing to comply with the clear mandate of the law to provide his tax returns to Congress. He, along with his hand-picked Attorney General, is refusing to allow the DOJ official involved in the above-mentioned citizenship question to testify to Congress. According to Sam Stein, “To date, the White House has refused to produce a single piece of paper or a single witness in any of the [House] Committee’s investigations this entire year.” That is not a battle over executive privilege or protecting presidential power. It is a flat out defiance of the constitutional right and obligation of congressional oversight.
We have a President who has consistently abused the use of national security to openly defy the will of the Congress. His use of the national security power to implement steel and aluminum tariffs were not backed by any evidence of a national security risk. His declaration of a national emergency along the border in order to steal congressionally authorized funds to build his border wall was an even more egregious attack on the separation of powers. He has ordered the Justice Department to investigate his political foes and those who are and have been investigating him. His hand-picked Attorney General is apparently prepared to do exactly that, stating his belief that the intelligence community “spied” on the President’s campaign. The Attorney General has already abetted the President’s obstruction of justice by totally mischaracterizing the determinations of the Mueller report and imposing his own, out-of-the-mainstream legal interpretation in order to absolve the President of obstruction.
We have a President who has ordered the Department of Homeland Security to defy American and international law in its treatment of asylum seekers. He has ordered babies to be kidnapped, held in cages, and then be brought into court without their parents to face deportation proceedings.
We have a President who has, from the very first day of his presidency, used the office to enrich himself and his family, a brazen violation of the Emoluments Clause. He refuses to do anything to defend against another foreign attack on our democracy, similar to the one that occurred in 2016, because he knows those attacks will be to his benefit.
The federal legislative branch controlled by the Republican party, the US Senate, has abetted these attacks on the core of our constitution and our democracy by doing nothing to restrain a criminal President. In addition, many congressional Republicans have gone further, abetting the President’s obstruction of justice, including providing information about the targets of the Trump-Russia investigation to the White House, regurgitating the President’s propaganda, selectively leaking partial testimony to mischaracterize that testimony, running false flag operations at the direction of the White House to imply that the President’s campaign was being spied upon by Democrats, and now preparing to use that ruse to do the President’s bidding, investigating the President’s investigator’s and political enemies. More importantly, those Republicans refused to defend the country against an attack by a foreign power in 2016 and refuse to protect us against a similar attack, from multiple foreign powers this time, in 2020.
Meanwhile, Republican-led state legislatures are taking another tack, continually busy undoing the results of democratic elections. I have previously written about the efforts in North Carolina, Wisconsin, Michigan, Pennsylvania, West Virginia, Missouri, Florida, and Utah to reverse the results of binding referenda, broadly limit the powers of new Democratic governors, and impeach judges whose decisions GOP legislatures merely disagree with. We can now add Kansas to that list as the Republican-led legislature is attempting to strip the power of the new Democratic governor to appoint the state’s Attorney General and Secretary of State should they leave their post. Instead, the replacement would be chosen by whichever party the holder of the position belonged to. Since both positions are currently held by Republicans, that would mean those positions would be filled by the choice of the Kansas GOP as opposed to the Democratic governor, should either or both leave their job.
The Republican party has becomes so corrupt that it is merely seen as a vehicle for fulfilling the wishes of those that want to control it. Stephen Moore may be a political and economic hack, but he expresses one bloc of power behind the party when he says “capitalism is more important than democracy”. For the plutocrats, of course, “capitalism” means more money and power for them. For the white nationalist culture warriors, the Republican party is the vehicle to ensuring white male privilege. For evangelicals, the party is their vehicle to maintain a white, Christian nation and help create the conditions for Armageddon. And for those who hold positions in the party, appealing to those groups is what keeps them in their cushy jobs.
It will only get worse. The President now has the Attorney General that will protect him. He believes that he has a Supreme Court that will do the same, although time will tell whether that belief is valid. The Republican party believes it can not win fair elections. GOP-led state legislatures will increasingly game the electoral process and defy the will of the majority in their state and the democratic process to maintain power.
The President is a racketeer. He gives orders like a mobster. The mob boss never kills his enemy. He gets one of his underlings to “take care of the problem”. That is what President did with Session, McGahn, Lewandowski, Comey, and Rosenstein. And Michael Cohen understood that when he lied to Congress.
The President also believes that his best path to victory in 2020 and avoiding having to face justice for his crimes is having the Democrats begin impeachment proceedings. His refusal to comply with congressional subpoenas is not about “running out the clock” until 2020. It is designed to provoke impeachment proceedings. The longer Democrats delay in beginning them, the more egregious the acts the President will take to provoke them and the more the Democratic base will demand impeachment. Like the contractor the President has stiffed having to choose between taking 50% of what he is owed or perhaps getting nothing by fighting forever in the courts, the President is making us face an impossible choice. Either we impeach him now and perhaps increase his chances to get re-elected or we watch him destroy the Constitution and our democracy and hope that he can be defeated in the 2020 election, if there is one. Michael Cohen, who knows the darkest side of the President better than most, has already warned us about his worries over the peaceful transition of power should the President lose or believes he will lose.
The institutional and constitutional checks and balances that we have relied on for 250 years are failing badly. Joy Reid pressed Obama advisor Chris Lu as to why, in our current state, we have any hope of believing the Congress, the Department of Justice, or the Supreme Court will be able to restrain our criminal President. Lu could only state he had faith in the Constitution. Faith will not be enough. It remains to we, the people, to figure out how to save our democracy. As Joe Conason noted in response to Reid, whether that is through the ballot box or in the streets remains to be seen.