The United States of America has consistently proven since its founding 249 years ago that it is, if nothing else, a resilient nation capable of ultimately persevering despite an uncanny capacity for tripping over its own feet. As Churchill famously said, “You can always count on Americans to do the right thing – after they have exhausted all other possibilities.”
The nation has survived a Civil War and a Depression that led a multitude to seek a governmental overthrow. I was around for a particularly disturbing period, 1968, when two of the era’s leading lights, Dr. Martin Luther King Jr. and Robert F. Kennedy, were assassinated, protests raged over the Vietnam War, a police riot tore at the fabric of the city of Chicago, civil unrest was widespread leading to riots in the streets of cities like Washington D.C., the Black Panthers were organized in an effort to demand the nation keep its promise and radical groups were becoming increasingly militant.
As the nation’s bard, Bob Dylan, once sang, “There was music in the cafes at night / and revolution in the air.”
Those were dark times. And it has become apparent we are in the midst of another. What was a fumbling, stumbling democracy is swiftly shifting toward an autocracy under President-cum-Dictator Donald J. Trump, assisted by a Supreme Court responsible for interpreting a Constitution ratified to specifically assure that America’s leader would not possess the powers of a king. That ideal seems to have vanished and there is no reason to believe that it will be regained anytime soon, if ever.
The current assault on American-style democracy could prove to be the most subversive yet, save for the Civil War. In the past, challenges to the system were external, conducted by individuals who were characterized in many quarters as outside agitators. This time the attack is coming from within with the president himself, with the acquiescence of the Supreme Court, ripping apart vital portions of the nation’s character, ignoring laws and the traditional constitutional boundaries.
The court, which includes three justices appointed by Trump among its nine members, has embraced, without any real explanation through the so-called “shadow docket,” characterized as the unitary executive theory, which essentially provides the chief executive, one Donald J. Trump, with virtually unfettered authority to do whatever his little heart desires with little oversight, save for that which is expressed at the ballot box.
And, who knows, the right to vote might just go the way of all flesh as well.
Congress has been all but dealt out of the equation as Trump has grabbed power with, it seems, little push-back. He has signed dozens of executive orders on matters that were once considered outside a president’s authority. He has essentially embargoed congressionally approved spending in areas ranging from foreign assistance to education and the environment. He has slashed the federal workforce, creating havoc in areas like weather forecasting, and is taking tighter control over data used by researchers, economists and scientists.
One of the most recent instances of Trump operating outside traditional federal prerequisites centers on the Department of Education, which he is seeking to destroy. The agency was created by Congress in 1979 and disburses about $150 billion annually in an effort to improve educational quality throughout the nation.
Since it is a creation of Congress, Trump shouldn’t hold the authority to just shut it down. But in March he signed one of his infamous executive orders that read, in part, “The Secretary of Education shall, to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.”
The department, under Secretary Linda McMahon, whose credentials for the job center on her association with big-time pro wrestling, then proceeded to fire about 1,300 workers, about half of the agency’s staff, rendering it impossible for the agency to conduct business, thus fulfilling Trump’s desires.
The federal workers sued. The lower courts determined the action to be unconstitutional. The Supreme Court, using the shadow docket, providing no explanation and bypassing oral arguments, allowed Trump to proceed.
Justice Sonia Sotomayor in a dissent attached to the ruling, said the court “hands the Executive the power to repeal statues by firing all those necessary to carry them out.”
“When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it,” she wrote.
Education isn’t the only department in Trump’s sights, bypassing Congress. Last month the high court permitted the administration to proceed with mass firings and lay-offs to downsize the U.S. Departments of Agriculture, Commerce, Health and Human Services, State, Treasury, Veterans Affairs and more than a dozen other agencies. In so doing the justices reversed a lower court ruling, allowing Trump to go ahead with the so-called reduction in force while the court case proceeds.
Michael Waldman, president and CEO of the Brennan Center for Justice at the New York University School of Law, wrote that the court’s action represents “a disturbing recent pattern.”
The justices, Waldman said, “have used the shadow docket to let the president fire independent agency heads, in clear violation of 90 years of precedent. They’ve allowed the administration to deport people to countries where they never lived. And they’ve given effective approval to the Pentagon’s move to bar transgender people from serving in the military. All these measures involve a passive-aggressive jurisprudence: We aren’t making a big ruling, you see, just addressing something done by other judges. Though the rulings are technically temporary, the damage is done.”
The issue has also arisen in regard to appointments. In one of his first days on the job, Trump fired without cause Gwynne Wilcox, a member of the National Labor Relations Board, leaving it without a quorum, effectively shutting the board down, and two members of the Equal Employment Opportunity Commission. All three were confirmed by the Senate to four-year terms. Their dismissals were seen as Trump’s effort to kill worker-focused agencies.
Members of these and other boards can only be fired “for neglect of duty or malfeasance in office, but for no other cause.” The Supreme Court in 1935 placed such limits on a president’s power to remove officials who perform quasi-legislative or quasi-judicial functions.
Yet, this year’s version of the Supreme Court declined in May to reinstate the fired board members, maintaining in an unsigned order that the Constitution appears to provide the president with the authority to fire the board members “without cause.” That judgment was entered without explanation, leaving the country to wonder why the court plans to overturn established precedent. The court may hear further arguments in an upcoming session.
The issue likely will rise again. Last week, Trump, in his usual fit of pique, fired Dr. Erika McEntarfer, commissioner of the Bureau of Labor Statistics because the employment numbers her office released were terrible. Like the others, she was confirmed by the Senate and was supposed to serve a set term. To make matters worse, Trump accused McEntarfer with “rigging” the data to make him look bad. What he said was, of course, bull manure.
Don’t think for a moment that this is a complete list of Trump administration atrocities. It barely touched on his overt racist attacks on diversity, equity and inclusion initiatives, both in the public and private sector, his inhumane immigration policies that are ruining good people’s lives, or use the Justice Department to harass and bully people he doesn’t like, a sickening effort that may eventually result in Soviet-era political show trials.
No, this just shows his willingness to toss law books and James Madison’s Constitution in the trash can, empowered by the cowardice of the Supreme Court, Congress and others who won’t stand up to the bully.
“As checks and balances are under assault, the Court has chosen to be complicit,’’ Waldman said. “It has found a new way to hand power to a lawless executive. At a moment of historic peril, history may record few rulings of consequence — just wreckage strewn across the constitutional landscape.”