It is difficult enough to swim in normal waters, without current or tide coming toward you. It is almost impossible to swim against a tsunami.
President Trump and his Administration have unleashed a tidal wave of offenses, against the law, against our political culture, against our basic values, and against common sense, in the first 100 days since his inauguration. The onslaught of actions that are reducing the size and scope of government, by eliminating institutions and structures as well as personnel who provide services, is reducing its effectiveness – not enhancing it as he promised.
Americans of all political persuasions see this. They cannot not see it – it is happening all around them. Not just in Washington DC, but throughout the country. People losing jobs, services being cut, organizations losing funding, people being punished for their speech or their identity.
I want to focus briefly on identity. There is much activity focused on immigrants, especially those confirmed or presumed illegal. And not only on immigrants. Those exercising their First Amendment rights to free speech and assembly, regarding matters not in favor with the Administration, are being picked up and detained, in some instances prosecuted and/or deported.
An issue that has come up repeatedly in this context is the scope of due process. Many believe that it only applies to citizens, and even then, not if the perceived offense is against the Administration’s interpretation of certain laws. For example, it portrays the large numbers of immigrants wanting to cross the border and enter the US as an “invasion,” and thus a violation of the Alien Enemies Act – adopted during an undeclared war with France in 1798 – and out of the reach of due process.
To test this position, we begin with the unchallengeable authority – the Constitution.
There are two due process clauses in the Constitution, one in the 5th Amendment, and one in the 14 th Amendment. A careful reading of both reveals that they apply to any person – not any citizen. All persons in the US have the Constitutional right to due process.
I cite these provisions because many are having a difficult time understanding or accepting them. I have written posts that refer to these clauses and some readers have commented that illegal immigrants are not entitled to due process. I have responded by
pointing out the Constitution’s language that states otherwise. But these commenters continue to state, and presumably believe, that persons here illegally are not entitled to due process.
These are not just ordinary citizens – who might be excused from knowing what the Constitution says. Although once the actual language is pointed out, they should acknowledge it, not continue to deny it. But public officials are also disregarding this basic right, in their zeal to cleanse our society from these perceived miscreants – and to please the President. They should know better.
The courts have been very active on these and related matters. One court recently stated, in emphatic terms, that immigrants coming to our shores do not constitute an “invasion,” that the Alien Enemies Act, which allows for deportation without due process, applies only in times of actual warfare.
It would be a very long post that attempted to catalogue all the offenses of this President and Administration. I have neither the information immediately at hand nor the patience to attempt such a post. And I doubt many readers would have the patience to read it.
What I do want to do is to try to get at the heart of the matter. Many of us Americans are beside ourselves with frustration, at the gravity of these offenses coupled with the seeming inability of other sectors in our society to stop them. What can be done?
The courts have actually been doing a very credible job. According to the New York Times tracking project, as of May 12, at least 148 rulings have come from courts across the country that have at least temporarily paused Administration initiatives via executive orders. In ordinary times this would be more than sufficient to halt a course of action.
But Trump and his minions blow off most of these and proceed on their way. Appealing negative decisions, seemingly with the hope that the Circuit Courts of Appeal and/or the
Supreme Court will support them.
Then there is Congress, the third of the three branches of government. Constitutionally, it is the first – Article I. The Executive is Article II, and the Judiciary Article III. But despite being the favored branch in the Constitutional Convention, Congress is completely failing to play any effective role in this current crisis. Frozen by members’ concerns about re-election, about their need to raise obscene amounts of money to run for re-election, and by their fear of Trump if they make any move against him or his agenda, they simply refuse to act. No matter what the evidence before them.
So where does that leave those of us appalled by this situation? With this positioning of the Constitutional branches of government, the things that are left to us ordinary citizens in our democratic system are the ballot and our voices. The next ballot is a year and a half away. While it is none too early to be preparing for the mid-terms, identifying candidates and helping them organize, that election is a long way off. While much damage is being done now.
For the present, our voices are what we have – today, tomorrow, every day. We need to
speak – to friends and neighbors, colleagues, officials, fellow citizens. To speak covers a lot of ground – to speak, literally, in casual conversation, in presentations, in writings, in letters, emails, texts, sermons, letters to the editor, op-eds. As noted above, the First Amendment not only guarantees the right to free speech, it punctuates that right by guaranteeing the right to assembly. To congregate – to come together. To amplify our voices.
The Founders knew from their own experience during the Revolution how important these activities were to achieving their objectives. Raising their collective voices allowed them to generate the public support necessary to win the war and achieve independence.
These are rights that are guaranteed. Rights that were bought with the blood of patriots.
They are things we can do. They are things we must 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 Kentucky Voices for Health and the Kentucky Board of Elections.