I think most of us are greatly challenged to understand what is presently happening in our country. Many current events are unprecedented in our lifetimes. I want to try to piece together an understanding. I will try to be dispassionate – although this too is a challenge.
We have a Congress that is so dysfunctional the House has not met for over a month. An individual elected in a special election on September 23, over 5 weeks ago, has not been seated, seemingly for political reasons.
More importantly, Congress as a whole has been paralyzed by the shutdown of most governmental functions. The impasse over continuation of health care subsidies for millions of Americans has frozen Congress into gridlock.
But the more consequential events involve the presidency. Regardless of one’s sentiments with respect to them, I think all would agree that they are extraordinary, and outside the boundaries that have guided and limited Presidents throughout our lifetimes.
For example, no President in our lifetime would have withheld money from entire federal agencies, cancelling programs and eliminating jobs, with no oversight or Congressional involvement; would have attacked and withheld federal monies from major universities, demanded money from major law firms, and attacked major media outlets, all for engaging in activities perceived to be hostile to the Administration.
No prior President would have unleashed federal agents to seek and deport, without due process, undocumented immigrants, regardless of their length of residence, criminal record, employment status and history, or contributions to their communities, resulting in the terrorizing of innocent persons across the nation.
No other President would have begun sending federalized National Guard and military forces to selected Democratic-run cities across the country, to quell “insurrection” and “terrorism,” despite the fact that the existence of such circumstances have not been determined by legal authorities and have been denied by local and state officials.
One could go on. But the pattern is clear.
A major component of this current confusion is the decision of the Supreme Court last year in Trump v. United States, giving the President almost unlimited immunity for any action taken in the exercise of his official authority, as well as actions taken in the “outer perimeter” of his official actions.
The scope of this ”outer perimeter” is unclear. It is otherwise undefined, leaving the question of whether a specific presidential action is legal difficult to determine.
However, the 6-3 opinion in Trump v. United States suggests that he will be given a very wide latitude of approval for his actions, regardless of whether they are taken as official actions or in the so-called “outer perimeter.”
Thus, the actions of President Trump that raise eyebrows cannot be evaluated by the criteria of the past.
This all leads to the question: is this course of conduct good for the country?
One’s answer to that question depends largely on their attitude toward the President and the relative status of circumstances in the country.
For those who support the President, the above-described actions are not problematic. Similarly if they share his dark view of circumstances in the country, i.e., believe that cities are being overrun by terrorists or lawless undocumented immigrants, that universities have been given over to socialists, that law firms are suing without reason Trump and/or his administration, that most of the media are putting out “fake news.”
On the other hand, those who believe that circumstances in the country, while imperfect, are generally OK, tend to believe they can be addressed in traditional ways by our three-part system of government – legislative, executive, judicial – each providing checks and balances on the other. This group has great concern about the Trump v. U.S. opinion, insofar as it distorts and disrupts our traditional system of government.
As noted above, the paralysis of Congress has ceded almost complete authority for virtually all governmental action to the President. There are few effective checks or balances.
The judicial system is a good example of this. Federal judges are appointed by presidents for life. People often expect them to rule consistently with the political affiliation of the President that appointed them. Happily, that is not always the case.
In fact, most legal challenges to Trump’s actions have been upheld by lower federal district courts – regardless of who appointed them. Courts of Appeals have been less consistent.
The major problem has been the Supreme Court. The Trump v. United States decision coupled with the Court’s utilization of its so-called “shadow docket,” where decisions regarding emergency matters are rendered quickly without oral argument or full written opinions, have been particularly problematic. Decisions upholding the President’s actions provide no explanation or transparency. This practice has generated great concern among attorneys and the people and interests they represent. Especially those challenging Trump’s policies or practices.
So we are at an impasse, with the country facing both unprecedented governmental actions and greatly reduced machinery for resolving the conflicts they generate.
The specifics of a resolution to this situation elude me.
What does not elude me is what is needed on the part of us as citizens.
Citizens have responsibilities that must be met for our government to work. These apply to all of us, regardless of our political persuasion.
We must participate. We must speak up, contribute our opinions.
We must engage in conversation with family, friends, neighbors, colleagues.
We must communicate with our elected officials. It might feel like our individual opinion means nothing, given the numbers of people involved, but it does. It is a part of the foundation for a point that can carry great weight in policy deliberation.
There are more strenuous options, such as demonstrating, marching, sitting in. The recent No Kings Day shows what collective action can do. Seven million people decided, individually, to participate. With great effect.
It is critical that all sides participate. To be part of a process that results in an outcome, even one you don’t like, leaves one with some sense of satisfaction and acceptance. No matter what the specifics.
It is a challenging situation we face. The primary task for all of us is to take the first step.
Get involved. Inertia will carry you once you do.
Col Owens is a retired legal aid attorney and law professor, author of Bending the Arc Toward Justice, longtime Democratic Party activist, and member of the Boards of Directors of Gateway Community and Technical College and the Kentucky Board of Elections.