Corrections and clarifications: Based on information from the National Park Service and released by the White House, a previous version of this story erroneously included the World War II Valor in the Pacific National Monument on a list of sites subject to the executive order. According to Proclamation 8327, the monument is 6,310 acres – not square miles – and therefore would not meet the 100,000-acre threshold in the executive order, the Department of the Interior says.
WASHINGTON — At least two dozen national monuments are at risk of losing their federally protected status as a result of President Trump’s executive order asking for an unprecedented review of their designations.
Under the 1906 Antiquities Act, either Congress or the President can protect federal lands by designating them as a national monument. And while Congress has occasionally revoked that status for existing monuments, no president ever has. Trump’s order opens the door to that possibility.
Trump is targeting all or part of monuments that make up 100,000 acres or more, and were created by presidential proclamation since 1996. The White House released a list of 24 of them on Wednesday. They are:
► Grand Staircase-Escalante National Monument in Utah, proclaimed by President Clinton in 1996. (1.7 million acres).
► Grand Canyon-Parashant National Monument in Arizona, proclaimed by Clinton in 2000 (1 million acres).
► Giant Sequoia National Monument in California, proclaimed by Clinton in 2000 (327,769 acres).
► Vermilion Cliffs National Monument in Arizona, proclaimed by Clinton in 2000 (279,568 acres).
► Hanford Reach National Monument in Washington, proclaimed by Clinton in 2000 (194,450 acres).
► Canyons of the Ancients National Monument in Colorado, proclaimed by Clinton in 2000 (175,160 acres).
► Ironwood Forest National Monument in Arizona, proclaimed by Clinton in 2000 (128,917 acres).
► Sonoran Desert National Monument in Arizona, proclaimed by Clinton in 2001 (486,149 acres).
► Upper Missouri River Breaks National Monument in Montana, proclaimed by Clinton in 2001 (377,346 acres).
► Carrizo Plain National Monument in California, proclaimed by Clinton in 2001 (204,107 acres).
► Papahanaumokuakea Marine National Monument in the Pacific Ocean, proclaimed by President George W. Bush in 2006 and expanded by President Barack Obama in 2016, (89.6 million acres).
► Marianas Trench Marine National Monument in the Pacific Ocean, proclaimed by Bush in 2009 (60.9 million acres).
► Pacific Remote Islands Marine National Monument in the Pacific Ocean, proclaimed by Bush in 2009 and enlarged by Obama in 2014. (55.6 million acres).
► Rose Atoll Marine National Monument in American Samoa, proclaimed by Bush in 2009 (8.6 million acres).
► Rio Grande del Norte National Monument in New Mexico, proclaimed by Obama in 2013. (242,555 acres).
► Organ Mountains-Desert Peaks National Monument in New Mexico, proclaimed by Obama in 2014 (496,330 acres).
► Basin and Range National Monument in Nevada, proclaimed by Obama in 2015 (703,585 acres).
► Berryessa Snow Mountain in California, proclaimed by Obama in 2015 (330,780 acres).
► Sand to Snow National Monument in California, proclaimed by Obama in 2016 (154,000 acres).
One other national monument meets the 100,000-acre threshold but was not included on the White House list:
► The San Gabriel Mountains National Monument in California, proclaimed by Obama in 2014 (346,177 acres).
Unlike the other monuments, which are managed by the Interior Department, San Gabriel is managed by the Forest Service, part of the U.S. Department of Agriculture. Zinke spokeswoman Heather Swift said she could not rule out action on San Gabriel. The Department of Agriculture did not respond to an inquiry about the status of the monument.
The executive order also allows for a review of sites smaller than 100,000 acres “where the Secretary determines that the designation or expansion was made without adequate public outreach and coordination with relevant stakeholders.”
I thought it was important for all of us to know which public monuments Trump is planning to rob us of. They may be destroyed or drastically changed due to mining or excavation. I am sad for all of us. Especially I am sad for all of our grandchildren and the grandchildren from around the world who might have wanted to visit and see these natural wonders. Once again big corporations wins.
THE HEALTH-CARE DEBACLE WAS A FAILURE OF CONSERVATISM
Let the recriminations begin! Actually, the health-care-failure finger-pointing got under way well before Friday, when Donald Trump and Paul Ryan cancelled a House vote on the American Health Care Act. A day earlier, aides to the President let it be known that he had come to regret going along with Ryan’s idea of making health care his first legislative priority.
In the coming days and weeks, there will be more of this blame shifting, and, in truth, there is plenty of blame to go around. Ryan failed to unify the House Republican caucus. Trump’s staff allowed him to endorse a bill that made a mockery of his campaign pledge to provide health insurance for everybody. And Trump himself blundered into a political fiasco, apparently believing he could win over recalcitrant Republican members of Congress simply by popping over to Capitol Hill.
But this is just politics. The larger lesson here is that conservatism failed and social democracy won. After seven years of fulminating against the Affordable Care Act and promising to replace it with a more free-market-oriented alternative, the House Republicans—who are in the vanguard of the modern conservative movement—failed to come up with a workable and politically viable proposal. Obamacare survived, and that shouldn’t be so surprising. When it comes to health-care policy, there is no workable or politically viable conservative alternative.
Of course, that isn’t how conservative lawmakers, pundits, and policy wonks will spin this. They will argue that Trump and Ryan betrayed free-market principles: if only they had proposed the outright repeal of Obamacare, and put forward a bill that genuinely liberated the health-care industry from federal intervention, everything would have worked out well. That will be the story—and it is a fairy tale.
The fact is that the health-care industry, which makes up about a sixth of the American economy, isn’t like the market for apples or iPhones. For a number of reasons (which economists understand pretty well), it is riven with problems. Serious illnesses can be enormously costly to treat; people don’t know when they will get ill; the buyers of health insurance know more about their health than the sellers; and insurers have a strong incentive to avoid providing their product to the sick people who need it the most.
Since the days of Otto von Bismarck, most developed countries have dealt with these problems by setting up a system in which the state provides medical insurance directly, or else mandates and subsidizes the purchase of private insurance, setting strict rules for what sorts of policies can be sold. Obamacare amounts to a hybrid model. It supplements employer-provided insurance, the traditional American way of obtaining health care, with a heavily regulated (and subsidized) individual insurance market and an expanded Medicaid system.
It is far from perfect. But, in combining mandates with subsidies, regulation, and access to a state-administered system for the poverty-stricken and low-paid, it is intellectually coherent. (Many of the problems it has encountered arose because the mandate to purchase insurance hasn’t been effectively enforced, and not enough young and healthy individuals have signed up.) Since it leaves in place the basic structure of private insurance and private provision, Obamacare is also conservative. As is well known, parts of it resemble a proposal that the Heritage Foundation put forward in 1992.
Today’s conservatives act as if they can simply wish away some of the problems that Obamacare was created to deal with. The original version of the American Health Care Act left in place many of the A.C.A.’s regulations but cut back the subsidies and gutted its Medicaid expansion. Had it been enacted, it would have led to higher premiums, at least in the short term, and a huge drop in coverage—twenty-four million people over ten years, according to the Congressional Budget Office. As these implications of the G.O.P. proposal became known to the public, the plan’s approval rating fell and fell. In the end, according to a Quinnipiac poll, only nineteen per cent of Americans supported it.
The Freedom Caucus, a group of right-wing conservatives in the House, wanted a bill that stripped away more regulations, which they claimed would enable insurers to offer cheaper and more flexible plans. On the eve of the vote, Ryan agreed to change a clause defining the “essential health benefits” that insurers are required to provide if they sell policies on the Obamacare exchanges—benefits including maternity and mental-health services. But this change would have created two insurmountable problems.
Once insurers were able to craft individual policies without adhering to any list of required benefits, buyers would self-select. Young, healthy people would choose cheap, crappy policies, and older, sicker people would choose more comprehensive policies. Insurers, knowing this, would raise the prices of the good policies. “Worthless policies would get really cheap, but comprehensive policies would get astronomically expensive,” Mother Jones’s Kevin Drum pointed out. “Virtually no one would be able to afford them.The other problem was political. Americans need maternity coverage, mental-health benefits, prescription drugs, pediatric services, lab tests, and the other things included on the list of essential health benefits. When moderate Republicans in places like New York, New Jersey, and Pennsylvania heard that these services might be eliminated under the amended legislation, they abandoned it in significant numbers. It was their desertion that ultimately killed the bill.
O.K., you might say: The American Health Care Act was a disaster, but what about all the other Republican health-care proposals that are out there? Maybe one of them provides a workable alternative to Obamacare. Let’s briefly look at a few of them.
When he was in Congress, Tom Price, the Secretary of Health and Human Services, who supported the A.H.C.A., put forward a bill of his own. But it was basically a less generous version of the bill that just died: in gutting Medicaid and strictly limiting federal funding for high-risk pools to insure sick people, it would surely lead to a big rise in the number of uninsured. Something similar applies to a bill put forward by Senator Orrin Hatch, who chairs the Senate Finance Committee.
There are a few other plans kicking around conservative think tanks, some of which, like Obamacare, tie the level of subsidies to income. But all of these plans have other serious problems. In eschewing purchasing mandates, they run into the issue of younger people being unlikely to sign up for coverage. In giving insurers more freedom to offer different plans and different pricing structures, they encourage self-selection and undermine the risk-pooling that is at the heart of successful insurance schemes. And in cutting federal support for Medicaid, they dismantle the element of Obamacare that has been the most successful at insuring more people at a reasonable cost.
Another Republican plan that may now attract some attention is the proposal put forward by Senators Bill Cassidy, of Louisiana, and Susan Collins, of Maine. But, far from dismantling Obamacare, the Cassidy-Collins plan would allow big, populous states like New York and California to keep the current system in place, including the Medicaid expansion and the surtaxes on high earners. Red states that don’t like Obamacare would be able to take federal money and design their own systems to provide basic, catastrophic coverage plans to everybody.
Because it retains so much of Obamacare, this proposal seems unlikely to receive majority support inside the G.O.P. In the coming weeks, Republicans in the Senate and the House will be trying anew to come up with an alternative that they can unite around, portray as a big break from the A.C.A., and sell to the American public. The lesson of the past few weeks is that they are likely to fail. As a novice to the subject noted recently, health care is complicated. Too complicated for ad-hoc policymaking and simplistic conservative nostrums.
The Republicans Fold on Health Care
The House abandoned its legislation to repeal and replace the Affordable Care Act, handing President Trump and Speaker Paul Ryan a major defeat.
To a man and woman, nearly every one of the 237 Republicans elected to the House last November made the same promise to voters: Give us control of Congress and the White House, and we will repeal and replace the Affordable Care Act.
On Friday, those lawmakers abandoned that effort, conceding that the Republican Party’s core campaign pledge of the last seven years will go unfulfilled. “I will not sugarcoat this: This is a disappointing day for us,” House Speaker Paul Ryan said at a press conference after he informed Republicans that he was ditching the American Health Care Act.“We did not have quite the votes to replace this law,” Ryan said. “And, so yeah, we’re going to be living with Obamacare for the foreseeable future.”Earlier in the afternoon, Ryan informed President Trump at the White House that the bill could not pass the House, as blocs of conservatives and moderates resisted a week of frenzied lobbying from the administration and were determined to vote no. The legislation had faced an avalanche of opposition from the outset. Democrats rejected any rollback of the Obama-era law, while conservative activists rebelled against a proposal that fell short of a full repeal. And as opposition mounted, Republicans representing swing districts and Democratic states began to pull their support, worried about cuts to Medicaid, a broader projected loss of insurance coverage, and a potential backlash from voters in the midterm elections next year. The nonpartisan Congressional Budget Office found that the proposal would increase the number of uninsured Americans by 24 million people over a decade, and a Quinnipiac University poll showed that just 17 percent of potential voters supported the plan, with 56 percent opposed.
Trump had initially insisted that Republicans hold a vote on the bill regardless of the outcome, wanting to see which members would defy him. He dispatched his top lieutenants to Capitol Hill on Wednesday night to urge rank-and-file lawmakers to fall in line, ending negotiations with the party’s right and left flank on further changes to the bill. But few members were persuaded, and by Friday, party leaders in the House wanted to spare their members from having to cast a vote in favor of an unpopular bill that would not become law. At a hastily arranged meeting in the Capitol basement, Ryan told Republicans he had called off the vote and said Trump was on board with the decision. Minutes later, stone-faced lawmakers left the meeting and prepared to head back to their districts for the weekend. One Republican staffer was in tears as she exited the room.
While conservative members of the Freedom Caucus withheld their support despite winning a last-minute amendment to broaden the repeal, it was the defection of more moderate and electorally vulnerable members that sealed its fate. Republicans could afford to lose no more than 22 votes to achieve a majority, and in a statement at the White House Friday, Trump estimated that they were 10 to 15 votes short. In perhaps the most ominous sign for the GOP leadership, the chairman of the powerful Appropriations Committee, Representative Rodney Frelinghuysen of New Jersey, announced he would oppose the bill on Thursday morning. In previous generations, it would be unheard of for a top committee chairman to oppose party leaders on such a major vote. Representatives Barbara Comstock of Virginia and David Joyce of Ohio followed suit about an hour later, sapping momentum from the effort less than a day after Trump delivered his ultimatum to Republicans to pass his bill or see Obamacare live on.
The White House and GOP leaders searched for votes wherever they could, but there were few lawmakers willing to suddenly support a bill they had already publicly denounced. Representative Walter Jones of North Carolina, a frequent dissenter in the party, said he waved off a last-minute call from the office of Representative Steve Scalise of Louisiana, the party whip. “I said, ‘Let me tell you: I don’t want to waste his time,’” Jones told reporters. “I don’t see anybody that was a no yesterday changing their vote.” He then ripped into the proposal and the leadership’s insistence that it pass. “This was absolutely a bad decision to move this type of bill this early,” Jones said.
Defeat on the floor dealt Trump a major blow early in his presidency, but its implications were far more serious for the Republican Party as a whole. Handed unified control of the federal government for only the third time since World War II, the modern GOP was unable to overcome its internecine fights to enact a key part of its policy agenda. The president now wants to move on to a comprehensive overhaul of the tax code, but insiders on Capitol Hill have long believed that project will be an even heavier lift than health care.
As the prospect of a loss became more real on Friday, the frustrations of GOP lawmakers loyal to the leadership began to boil over. “I’ve been in this job eight years, and I’m wracking my brain to think of one thing our party has done that’s been something positive, that’s been something other than stopping something else from happening,” Representative Tom Rooney of Florida said in an interview. “We need to start having victories as a party. And if we can’t, then it’s hard to justify why we should be back here.”Nothing has exemplified the party’s governing challenge quite like health care. For years, Republican leaders resisted pressure from Democrats and rank-and-file lawmakers to coalesce around a detailed legislative alternative to Obamacare. That failure didn’t prevent them from attaining power, but it forced them to start nearly from scratch after Trump’s surprising victory in November. At Ryan’s urging, the party had compiled a plan as part of the speaker’s “A Better Way” campaign agenda. Translating that into legislation, however, proved a much stiffer challenge; committee leaders needed to navigate a razor’s edge to satisfy conservatives demanding a full repeal of Obamacare and satisfy moderates who preferred to keep in place its more popular consumer protections and Medicaid expansion. They were further limited by the procedural rules of the Senate, which circumscribed how far Republicans could go while still avoiding a Democratic filibuster.The legislation Republicans came up with would have eliminated Obamacare’s insurance mandates and most of its tax increases, but it left in place many of the consumer protections that the public broadly supported. Conservatives were unhappy that the proposal did not immediately end the law’s Medicaid expansion or scrap all of its regulations, while moderates worried that the bill ultimately would leave too many of their constituents uninsured or facing higher costs than they do under the current system.Both Trump and Ryan characterized Obamacare as a law in collapse, even as they acknowledged Republicans now were powerless to repeal it. But despite the challenges it still faces, Democrats rejoiced at an unexpected reprieve for an achievement that appeared to be doomed a few months ago. “Today is a great day for our country. It’s a victory,” declared Nancy Pelosi, the House minority leader who steered the Affordable Care Act to passage seven years ago this month. Hillary Clinton cheered the news on Twitter. “Today was a victory for the 24,000,000 people at risk of losing their health insurance, for seniors, for families battling the quiet epidemic of addiction, for new moms and women everywhere,” she said. “Most of all, it’s a victory for anyone who believes affordable health care is a human right.”With the leadership’s plan dead, Republicans said they would try to move on to other issues. But the party’s failure on health care will sting, and it will linger. On Friday, Ryan was asked what GOP lawmakers should say to their constituents after promising them for so long they would repeal and replace Obamacare. The speaker was stumped. “That’s a good question,” he replied. “I wish I had a better answer for you.”
Well, we have won this battle. Twenty four million will keep their health insurance. This is a huge win for these families and the future of America.
We must remember, however, that we have not run the war. The Republicans still plan to pass a tax plan that will increase the burden of the middle class and decrease the taxes on the 1%. Trump still plans to build at Wall – at tax payers’ expense – that will do nothing to make the country safer, but will undoubtedly make us foolish in the eyes of our allies and enemies. The Republicans still plan to gut the EPA and the National Endowment of the Arts and Meals on Wheels.
I asked 8 experts if we’re in a constitutional crisis. Here’s what they said.
Are we in a constitutional crisis?
Well, no. As silly as the president declaring “SEE YOU IN COURT” in all caps on Twitter is, it’s not exactly a sign that he’s willing to bypass the judiciary altogether, which really would portend a crisis.
So I decided to ask eight leading experts — six constitutional law professors and two political scientists — for their thoughts. They were unanimous that the situation as it exists now doesn’t count as a constitutional “crisis”; some cast doubt on whether that term, which has no firm definition, is even useful.
“Trash-talking the federal courts on Twitter does not create a constitutional crisis,” Yale’s Jack Balkin explained. “It’s a really bad idea, but there are many really bad ideas that are not constitutional crises.”
But most experts said that if Trump were to start defying court edicts, that would very possibly qualify, and even his mere rhetoric ramps up conflict with the judiciary in a counterproductive and perhaps dangerous way.
And they were sure to add that even if we’re not in a constitutional crisis, that doesn’t at all imply that what is happening is normal, or moral, or fair, or decent. “I don’t like the phrase ‘constitutional crisis’ because it has this contention that unless the whole system is up for grabs, we shouldn’t care about an 18- or 19-year-old kid in Chicago who is so anxious about being deported he takes his own life,” Aziz Huq, a constitutional law professor at the University of Chicago, noted. “Crises happen everywhere on a micro scale. Just because they are happening to people on the margins doesn’t make them less important.”
Defining a “constitutional crisis”
There are two major papers in the American constitutional law literature on the concept of a “constitutional crisis.” The first, from Princeton political scientist Keith Whittington, was written in the wake of the impeachment of President Clinton and the contested 2000 election, both of which provoked fears that the US was either in, or barely avoided, a constitutional crisis. Whittington argued that neither came close to qualifying.
“Constitutional crises arise out of the failure, or strong risk of failure, of a constitution to perform its central functions,” he wrote. That didn’t happen in the impeachment (which unfolded according to the procedures laid out in Articles 1 and 2) or in the 2000 election (in which decisions of executive branch officials in Florida were challenged through normal legal channels and all actors respected the ultimate decision of the US Supreme Court, whether or not they thought it was rightly decided).
So what would qualify? Whittington divided constitutional crises into two categories. Operational crises occur “when important political disputes cannot be resolved within the existing constitutional framework.” That is, the Constitution itself is failing, and is allowing people engaged in a political conflict to each behave in ways that together can result in calamity. A “crisis of constitutional fidelity,” by contrast, occurs when, “important political actors threaten to become no longer willing to abide by existing constitutional arrangements or systematically contradict constitutional proscriptions.” That’s when what the Constitution prescribes is clear, but one or more politician or branch of government willfully defies it.
The secession crisis of 1860 was, Whittington argues, both an operational and a fidelity crisis. It was a fidelity crisis because some political actors — namely the seceding Southern states — refused to obey the dictates of the Constitution and explicitly rejected its power over them. But it was an operational crisis too, because, “the text of the Constitution was silent on the question of secession, and it provided no clear mechanism for resolving the contested question of whether and how states could secede from the Union.”
Whittington told me via email that he doesn’t think the current standoff between Trump and the judiciary qualifies as either a fidelity or operational crisis. While Trump’s comments are, he says, “certainly disquieting,” he adds that “disagreements between the executive and the courts are not uncommon, and are sometimes expressed rather strongly.”
What would change matters is if Trump were to receive an unfavorable ruling from the Supreme Court — and ignore it. “If the president were really to contemplate ignoring a decision by the U.S. Supreme Court, we’d be in nearly uncharted waters,” Whittington adds. He noted that the US has come close to that scenario in the past, but that in just about every case either the president or the Court backed down before an explicit violation occurred. For instance, in 1974 the Supreme Court ruled that Richard Nixon had to hand over the Watergate tapes to the special prosecutor’s office, and Nixon briefly considered not complying, as he strongly felt the president should not be subject to judicial proceedings outside of impeachment. But strong pressure from congressional Republicans and the threat that he would be impeached anyway caused him to back down and comply.
Balkin agrees that open defiance of clear court dictates could qualify as a crisis. He and UT Austin’s Sanford Levinson published the other widely cited article besides Whittington’s categorizing and analyzing constitutional crisis. In addition to Whittington’s two categories, they add a third: when two or more political actors each strongly believe the other is violating the Constitution or constitutional norms. In fidelity crises, it’s clear that only one side is violating the Constitution. In operational crises, it’s clear both sides are obeying the Constitution. In type three power struggle crises (“power struggle” is my term, not theirs, but it’s clearer than “type three”), each side has a real argument that it’s obeying and the other isn’t.
Balkin and Levinson offer a number of examples of power struggle crises, including the Nullification Crisis (in which South Carolina claimed it had the constitutional right to not enforce a federal tariff, Andrew Jackson claimed it didn’t, and each had arguments for why they were right), the conflict between Andrew Johnson and Congress over each one’s role in Reconstruction, and the Little Rock Crisis in 1957 between the government of Arkansas and the Eisenhower administration.
“We are not having a constitutional crisis, at least not yet,” Balkin told me via email, elaborating on a blog post he published on the topic. “Trump has not announced that he is going outside the Constitution, and he has not openly defied a judicial order. … If he does either of these things, and he won’t back down, then we would be in a constitutional crisis.”
Maybe not a crisis, but “hardball”?
No expert I talked to, including Whittington and Balkin, characterized the current situation as a constitutional crisis. “As far as we know, the executive is complying” with court orders, Yale’s Heather Gerken says. “That’s not a constitutional crisis. That’s a constitution working.”
Luckily, the legal literature has developed other, arguably clearer, categories for talking about heated conflict like this. In 2004, Mark Tushnet, now at Harvard Law, introduced the concept of “constitutional hardball”: when political actors are clearly acting within their legal and institutional limits, but are violating past practices or norms in a way that feels unprecedented and provides advantage to their side.
For example, he argues that Republican efforts to redistrict congressional seats in Texas and Colorado in 2003, after they had already redistricted for the census, count as constitutional hardball, as does the impeachment effort against Bill Clinton, as does Democrats’ obstruction of appellate nominees in the early George W. Bush administration. In none of those cases was anybody acting outside their prerogative per the Constitution. But in every case, they were using those powers in new and tough ways that caught their opponents off guard.
“In the current spat, if there is hardball going on, it takes the form of White House people bypassing the established systems for vetting executive orders,” Tushnet told me. “Not submitting them to career people in the Office of Legal Counsel, but sending it apparently only to the political, shadow person they sent over there. They can say, ‘We did send it to OLC,’ but the person who got it is not the kind of person who’d ordinarily be used to vet these issues.”
But he was open to the idea that Trump’s rhetoric against the judiciary could count too. “The more or less formal definition of constitutional hardball is that it consists of actions that are inconsistent with settled ways of doing things. In a political context, statements and rhetoric count as actions,” he explained. “I want to say I didn’t draw that distinction when I initially developed the idea. Now that we’ve had more examples, rhetoric can count as a form of constitutional hardball.”
Constitutional “showdowns” are important, but not crises
The University of Chicago’s Eric Posner and Harvard’s Adrian Vermeule introduced the parallel concept of “constitutional showdowns,” in 2008. The idea is similar to the idea of hardball, but focuses more on the precedents that such conflicts can create. A constitutional showdown, Posner and Vermeule wrote, is a “a disagreement between branches of government over their constitutional powers that ends in the total or partial acquiescence by one branch in the views of the other and that creates a constitutional precedent.”
They cite, as examples, the conflict between Nixon and the Supreme Court over the Watergate tapes (in which Nixon totally acquiesced and a new precedent was created limiting the president’s powers), the conflict between the Court and Harry Truman over seizing a steel mill (Truman backed down, creating another precedent limiting presidential powers), Abraham Lincoln’s refusal to obey an order from Chief Justice Roger Taney to release a man arrested by Union troops in 1861 (which created a new precedent enhancing the president’s war powers), and Andrew Jackson’s refusal to help enforce a Supreme Court ruling in 1832 that Georgia’s laws did not apply in Indian territory (which set a precedent, since contradicted by events like the Little Rock Crisis in 1957, of presidents not always acting to enforce federal rulings against state governments).
But for now we’re in a constitutional showdown of a more ordinary variety. “I think showdowns are unavoidable because constitutional rules do not necessarily keep up with the times (while amendment has proven to be too difficult to revise them in a timely fashion), and government depends on cooperation among different institutions,” Posner said. And who is right in each showdown can vary. You can think it was right of Lincoln to claim the power to suspend habeas corpus in wartime, but not for Jackson to decline to use federal force to protect Indian rights (and then to use it to commit ethnic cleansing).
“But,” he added, “the rule that the president obeys a judicial order in peacetime is ancient, and it is well established to be a good one except if the judiciary goes haywire, which is certainly not the case here.” Violating that norm would go further than Nixon, Truman, Lincoln, or even, arguably, Jackson went. And Trump ordering border agents to enforce his executive order when judges are telling them not to would violate that norm.
Suppose we get into a crisis. Could Trump then be stopped?
While no one I talked to declared the situation rightnow a crisis, many expressed concern that President Trump is all too willing to provoke one.
“Remember Trump’s statement before the election: ‘I’ll accept the results, if I win’?” Alice Ristroph, a law professor and political theorist at Seton Hall who has written about constitutional crises, says. “I think this administration will accept and preserve the basic structure of the American constitutional system if that system can be manipulated to give the administration what it wants. If Trump is overruled by the courts, who knows what will happen. Maybe a crisis.”
So what happens then? A lot depends on how institutional actors respond. Aníbal Pérez-Liñán, a comparative political scientist at the University of Pittsburgh who studies presidential democracies in Latin America, including constitutional crises experienced there, notes, “Many countries modeled their constitutions after the US, but most presidential regimes have experienced much more turbulent histories. The reason for American stability lies in the fact that politicians in both parties historically exercised civility and reached deals to process their disagreements.” That norm, of course, would take a major battering if Trump rejected a Court edict.
In that case, there would be two broad possibilities. One is that Trump, despite an initial rejection, somehow backs down. For that to happen, someone would have to persuade or force him. It could be his close advisers telling him he’s gone too far. It could be his own vice president and Cabinet, who could threaten to remove him by invoking the 25th Amendment. But institutionally, the people who are supposed to keep him in check in a case like that are members of Congress.
“The crucial thing for both the Court and the president is how Congress, and particularly the congressional Republicans, position themselves on a potential conflict,” Whittington says. “If the Republicans make it clear that they would not support presidential defiance of the Court, it would strengthen the hand of the judiciary. … It would seem unlikely that congressional Republicans, or even the president’s own Cabinet, would be willing to do lasting damage to the courts over these sorts of normal policy disagreements.”
But what if no one stops him?
And what if no one keeps him in check? Then you get the possibility that the Court will be duly chastened, a new precedent will be set where its powers are greatly reduced, and the president emerges more powerful than before. “Purges of supreme courts or constitutional tribunals have been a common affair in Latin America, where many presidents have little tolerance for dissent,” Pérez-Liñán notes. Poland’s governing party has recently been cracking down on its Constitutional Tribunal in similar ways, raising serious concerns that the rule of law is eroding and democracy is backsliding.
Tushnet argues that a move like this by Trump, unchallenged, needn’t necessarily amount to democratic backsliding. It would usher in a new “constitutional order,” in Tushnet’s words, but such transitions can be either good or bad and aren’t always harbingers of democratic collapse.
“It might be that what the president is on the way to doing is becoming an authoritarian unconstrained by law entirely,” he explains. “But it could be that the president’s position is, ‘With respect to border control and national security, the courts have overstepped their bounds, I’m acting to make sure we have an appropriate relationship with the courts in that domain, and I don’t have a general quarrel with the rule of law.’ … It could be a component of a new settlement of relations among the branches that would not be a departure from core notions of the rule of law.”
“I don’t like what Trump is doing,” he clarifies, “but I’m willing to present it in a conceptual or constitutional theory framework that is independent of my particular views of this particular president.”
Huq, of the University of Chicago, notes that it’s hardly unusual for executive branch officials to drag their feet in implementing court decisions. Think of state officials failing to desegregate after Brown v. Board of Education, or the aftermath of Boumediene v. Bush, a 2008 Supreme Court decision that ruled Guantanamo detainees had a right to federal court review of their detention but that did not result in many detainees getting that review or being released, due, Huq argues, to “internal bureaucratic resistance.”
“But,” he also notes, “it’s hard to think of examples when the resistance starts off before the cases have been fully litigated. Where there’s zero willingness, up front, to comply. I can’t think of cases where resistance and refusal to comply have been coupled with an attack on the judiciary and an attempt to offset blame for bad political outcomes on the judiciary. That’s another example of a norm with respect to the Constitution that we’ve just blown apart.”
That’s what makes Trump’s case so different. In a recent paper titled “How to Lose a Constitutional Democracy,” Huq and his University of Chicago colleague Tom Ginsburg argue that a wholesale “authoritarian reversion,” along the lines of Hitler’s rise to power in 1933 or Gen. Sisi’s coup in Egypt in 2013, is unlikely in the US, for a variety of reasons. But “constitutional retrogression” — the slow erosion of democratic norms and institutions — is becoming more common abroad, and poses a real risk for the US. That’s the process by which Vladimir Putin’s Russia, Hugo Chávez’s Venezuela, Recep Tayyip Erdoğan’s Turkey, and Viktor Orbán’s Hungary have moved away from democracy and toward authoritarianism.
In other countries, constitutional amendments to bolster incumbent leaders’ power have played a significant role. But Huq and Ginsburg don’t think that’s likely, not least because Article 5 of the Constitution makes amendments extremely difficult to pass. Instead, they write, “The most likely motor of antidemocratic dynamics in the American political system is the presidency, acting with the acquiescence of a co-partisan Congress.” Helping along a presidency-driven retrogression would be an acquiescent judiciary (perhaps chastened by a president who doesn’t obey Supreme Court rulings he doesn’t like) and an erosion of electoral competition due to, say, voter ID laws and partisan districting.
“What I would count as democratic backsliding is a substantial negative change along three different elements or institutions happening at the same time,” Huq says. “Those three elements are the necessary institutional foundations of democracy, such that if you don’t have those institutional features, you can’t really have democracy. One is the possibility of political competition. The second is the rule of law. The third is the quality of liberal rights of speech and association that are necessary to the democratic process.”
Trump ignoring a court order would harm the rule of law but not necessarily the other two; in itself, it might not constitute backsliding. It could just be a rearranging of power between the branches, as Tushnet suggests. But Trump’s past actions and statements suggest the other two criteria could be in danger too.
Huq doesn’t think we’re in a constitutional crisis (“I don’t know what the term ‘constitutional crisis’ means, which I feel like is a very law professor thing to say,” he jokes) or that we’re engaged in democratic backsliding. But he thinks the danger is real and worth considering.
“My view,” he says, “is that we’re very vulnerable.”
I firmly believe that the Senate will protect our Democracy. There are GOP members who will also help to prevent the destruction of Democracy. I would to hear your thoughts and would encourage good natured debate. I hope you will consider sharing your thoughts.
It’s easy to miss amid Donald Trump’s frenetic pace of activity and nonstop media coverage, but the most important story in American politics right now isn’t about what Trump is doing: It’s that the opposition is working.
The millions of people who marched in Washington and other cities around the world on inauguration weekend and then demonstrated again at airports the following weekend are making a concrete difference in the world. So are the tens of thousands who’ve called members of Congress or showed up in person at their events.
Trump is getting things done, but all presidents do that. Look at what he’s not getting done. A Republican-controlled Congress bowed to public outrage over an attempt to water down an ethics office. Trump dramatically downscaled his own executive order barring entry to the United States from seven Muslim-majority countries. He’s having unprecedented difficulty getting his Cabinet nominees confirmed, even though the Senate’s rules have changed to make confirmations easier than ever. Conservatives in Congress have put their big plans to privatize Medicare and public lands on hold. And the drive to repeal the Affordable Care Act is running into very big trouble.
None of this is based on the discipline and self-restraint on the part of the White House. It’s thanks to bold acts of resistance. The result is lives have been saved, many more lives have been demonstrably improved, and the proven template for future success has been created.
Not only have the resisters already markedly altered the trajectory of public policy, they have also begun to make a difference in each other’s lives and their own conceptions of themselves. And this is the greatest threat to the Trump movement.
For the moment, Trumpism holds the vast preponderance of political power despite its thin electoral base. That means Trumpism will make progress, even in the face of effective resistance. But for the positioning to hold, Trump needs to convince his opponents that they are failing, so the prophecy will become self-fulfilling.
That is why it’s crucial for Trump’s opponents to be aware that protesters’ efforts are not futile. We know they can succeed, because they are already succeeding. What’s needed is for Trump’s critics to continue to resist the siren song of sectarianism and keep at it. If they do, Trumpism will be buried.
Trump has retreated enormously in the face of pressure
So far, the highest-profile blow to Trump has come from a federal judge who has temporarily stayed key elements of Trump’s crackdown on travel and immigration to the United States. News has been coming so hard and fast in 2017 that many Americans are not yet aware of the remarkable amount of ground that Trump has already given in the face of sustained public pressure. This popular mobilization lacks the clear-cut victories of a judicial process, but also constitutes a more durable form of anti-Trump activism than counting on the judiciary.
Niki Renee covered much of the news in an excellent tweetstorm Wednesday morning, but the list of progressive successes is actually so long that she left a few things off it.
Even the rollout of Neil Gorsuch to fill the Supreme Court vacancy is, despite its success, a sign of Trump’s underlying weakness. The original plan was to fill a whole week with executive orders. But the massive resistance to Trump’s actions on refugees forced the administration to scramble, moving the low-hanging Gorsuch fruit forward and leaving a number of additional orders hanging on the vine unissued.
Resistance is making a difference on undecided issues
It is telling that in most of these cases, the Trump administration is committed to pretending that resistance isn’t the cause of the reversals. Trump has attempted to argue that he — rather than public outcry — is responsible for the OGE reversal. And the administration has tried to sell the public on the idea that his orders were never meant to apply to green card holders, and that the “confusion” around this and other subjects is the fault of the media.
Those of us who lived through these events owe it to ourselves and to others to remember them correctly. In all cases, Trump acted in response to public outcry, not in advance of it. Things changed because people paid attention, spoke up, and made a difference.
None of that means progressives should feel complacent about the Trump administration — just the opposite. But recognition that mass mobilization is making a real difference is critical to keeping up the pressure on fights to come, especially the looming battles over Obamacare repeal and the fate of the DREAMers protected from deportation by the Obama administration.
Two crucial issues hang in the balance
Republicans control the White House, the Senate, and the US House of Representatives, and liberals will find that on many issues there is simply nothing they can do to halt the advance of conservative policy. But there are two big battles underway where activism is already making a difference and where success or failure is important in its own right and freighted with broader implications.
The Republican strategy is to try to pull the wool over people’s eyes, leveling accurate complaints about the shortcomings of ACA plans and then replacing them with something worse while pretending to be replacing them with something better. An active, engaged citizenry that shows up at protests and town halls and makes phone calls signals to Republicans that the deception won’t work and they ought to tread cautiously.
The other is the fate of the DREAMers, undocumented immigrants who were brought to the United States as children and were granted relief from deportation under Obama’s Deferred Action for Childhood Arrivals (DACA) initiative. The Sessions/Bannon/Miller faction of the Trump administration has written a draft executive order rescinding this protection, but Trump seems cautious about actually promulgating it, fearing the massive blowback that would surely result from deporting a large, visible, sympathetic, and well-integrated group of immigrants.
If opposition to Trump is demobilized and demoralized, these initiatives will be vulnerable. If it is sustained and active, they can be preserved.
Democrats do not have the power, on their own, to win either of these key battles. But citizens do have the power to win them, by making Republicans scared. All the evidence of 2017 thus far is that Republicans are, in fact, scared. The question is whether people will stay mobilized and ensure that the GOP stays nervous.
Protest is the new brunch
Political action can be habit-forming. Once you’ve already made a sign and taken it to a protest, it’s easier to just bring it along again in the future. Once you know which of your friends might be interested in going with you, it’s easier to reconnect and do it again.
Trump fans, meanwhile, are going to face the natural demobilization and disappointment that comes with actual governance. He will be less of an orthodox free marketer than some of the people who voted for him are hoping, and he will be less of a heterodox populist than some of the other people who voted for him are hoping.
The Republican Party is in a position of enormous power but also tremendous vulnerability. Its central economic policy objective — steep reductions in the taxation of high-income families — is unpopular. Trump’s central policy idea — that trade wars and deportations can make America safer and more prosperous — is simply incorrect. Trump revels in the adulation of his core supporters and will continue to do so no matter what happens — even an incumbent as thoroughly discredited as Herbert Hoover got 40 percent in his reelection bid. But a political strategy of lies and contradictions is a recipe for disappointment and failure. Trump triumphed over divided and demoralized opposition in 2016. He will lose if his opponents stay energized and united.
There’s a lot of time between today and the New Jersey and Virginia elections in November that will be Trumpism’s first test at the polls. But so far, the anti-Trump movement is succeeding — perhaps much better than its foot soldiers realize.
Despite what the conservatives want to believe on Twitter, we are making a difference. The marching, the calling Representatives and Senators, the fundraising and volunteering for the DNC is working. We have become a thorn in the side of the GOP. What should we do now? Keep doing what you have been doing. If you haven’t done anything yet, consider if you can do something. Perhaps if you just encourage your friends to do what you can’t or donate to the ACLU so they can keep up the important suits against Trump and the government. These are important in the effort to protect humanity from Trump and his followers who would have you believe that people who are not rich, white and male don’t matter.
We are the anti-Trump movement, known to us as the Women’s March Movement. I am proud to have found the political fire to get out there and begin marching and protesting again. Talking to friends, I have found that friends that never were activists before and are retirees, as am I, are breaking in new walking shoes marching and calling Senators and Representatives.
Not everyone I know agrees with my militancy. Or they support Trump. I believe that at my age it is better to go out speaking up and fighting to protect those that Trump would marginalize than to sit and play bingo and read magazines. At least for me, it is the right thing to do. Just think for what is the right thing for you to do in this place in your life and in America’s life.
The Doobie Brothers said it best:
You don’t know me but I’m your brother
I was raised here in this living Hell
You don’t know my kind in your world
Fairly soon, the time will tell
You, telling me the things you’re gonna do for me
I ain’t blind and I don’t like what I think I see
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Take this message to my brother
You will find him everywhere
Wherever people live together
Tied in poverty’s despair
You, telling me the things you’re gonna do for me
I ain’t blind and I don’t like what I think I see
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the
You, telling me the things you’re gonna do for me
I ain’t blind and I don’t like what I think I see
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
Takin’ it to the streets
This is more important than a few executive orders signed by President Donald Trump. It’s more important than his nominations for positions in his administration. It’s even more important than who gets appointed to the Supreme Court, or whether Obamacare gets repealed.
Nothing in the headlines these days is more important than this: The President of the United States is divorced from reality, unable to tell the difference between the truth and what he wants to be true. In August, much of the American press finally broke out the word “lie” to describe many of Trump’s statements, but that’s not enough. Reporters must now press the president to explain if he believes these statements to be true and why. Plenty of politicians deceive, but one who cannot discern reality from fiction is dangerous.
Lies, Lies, Lies
On January 21, Trump demanded that White House press secretary Sean Spicer inform the public they could not believe their lying eyes about the size of the crowd at his inauguration because photographers were intentionally deceptive, the reporting was deliberately false, magnetometers kept people out of the back areas (they weren’t used there), white grass-protectors that gave false impressions of the size of the crowd had never been used before (they have been), and on and on. That same day, Trump brought an applause team with him to the CIA’s Memorial Wall, which honors 117 CIA officers who died in the line of duty, where they clapped and whooped in a desecration of that sacred place as Trump spun more fantasies: that he had been on the cover of Time magazine more than anyone else (not even close: He’s been on the cover 11 times; Richard Nixon was on 55 times; Barack Obama was on it 12 times in 2008 alone); that God looked down and said He wasn’t going to let it rain when Trump gave his inaugural speech (it did); and, again, about the size of the inaugural crowd. On Meet the Press the next day, White House Advisor Kellyanne Conway explained that, in analyzing the size of the inaugural crowd, the Trump team had “alternative facts”—just a small step away from an alternative reality.
Then Trump made it worse. In a private meeting with congressional leaders, he continued complaining about the press reports on the attendance for his inaugural. Then, as part of his effort to deny he lost the popular vote in November (he did, by nearly three million votes), Trump spent 10 minutes complaining that up to five million undocumented immigrants cast ballots in that election. Two days later, after a deluge of criticism that he was lying about that, Trump announced he was ordering a national, taxpayer-funded investigation into voter fraud.
U.S. President Donald Trump listens to remarks at the National Prayer Breakfast February 2 in Washington,
The following week brought more such moments. The most discombobulating came after Trump’s executive order banning travel for 90 days into the United States by people from seven predominantly Muslim countries. As immigration officials detained legal residents and people traveling with valid visas, as major corporations such as Google issued emergency orders for executives from those countries who were traveling for business meetings to come back to the United States immediately, as protesters swarmed airports across America, Trump tweeted that “all was going well” with the ban.
The irrationality of Trump’s statements is astonishing. On the voter fraud claims, for example, government data shows there are 11 million undocumented immigrants in the United States. By Trump’s five million voter estimate, that means undocumented immigrants had a huge turnout rate in the 2016 elections, and every one of them voted for Hillary Clinton. For all voters, the turnout was 57 percent.
So, in Trump’s world, close to half of all undocumented immigrants in the United States risked being caught and deported by turning up at polling places at a rate close to that of Americans whose only risk was they might be late for dinner.
Can Trump Acknowledge Reality?
No rational person could believe this. That leaves two possibilities: Trump intentionally dispenses falsehoods any smart person knows will be detected as lies, or worse, he cannot discern between reality and what he wishes was true. During his first White House interview, Trump told ABC News that two people were shot in Chicago as former President Barack Obama gave his farewell speech; the Chicago Tribune proved there were no such shootings. Then there are his statements of undeniable falsity, such as when he asked in a tweet on December 12 why no one had brought up the issue of Russian interference in the presidential election until after he won. But he stood on a stage 54 days earlier dismissing the intelligence community’s assessment of the Russian hacking. Was he knowingly lying? Or is Trump’s memory so poor that he could not remember a statement he made—or even that a discussion had taken place—about whether America was under cyberattack by a foreign power? Or, worst of all, did he not know what he said and tweeted was untrue?
As Newsweek reported during the campaign, Trump has made innumerable false statements under oath. That’s obviously important—former President Clinton was impeached because he lied under oath once to hide an affair; Trump did it numerous times, and usually just to puff himself up. He testified to Congress in 1993 that he had never tried to arrange any business deals with Indian casino operators; Newsweekdiscovered phone records, memos and an affidavit proving that was a lie. He said in a sworn deposition he had been paid $1 million for a speech when he had only received $400,000—he attempted to explain away the falsehood by saying the pre-speech publicity was worth $600,000 to him. He told Deutsche Bank in loan applications in 2004 he was worth billions; the bank concluded that was a lie and set his net worth at $788 million.
Of Trump’s many past fantasies, two stand out for what they reveal about how his mind works. He claimed to own 50 percent of a real estate project although he owned only 30 percent. When asked about the discrepancy in a deposition, he did not say he’d simply made a mistake; instead, he said, “I’ve always felt I owned 50 percent.” In another instance, he said that he knew companies had decided not to bring proposals to him after a journalist publicly questioned his net worth; when asked under oath what businesses had declined to deal with him, he said he could not name them because none of them had told him they’d made this decision, but he just knew they had snubbed him.
Think about that: the President of the United States said under penalty of perjury that he knew people had refused to bring him business even though he did not know who they were, had no facts to confirm they existed, and could not explain what deals their decisions involved. And he said that a contractual ownership of 30 percent was in fact 50 percent because that was how he felt.
Motives to Lie
This is not normal. This kind of story-telling does not fit with what scholarly, peer-reviewed studies have concluded are the motives and methods of lying. “To be told, a lie must be certain to achieve some valuable end,’’ Dr. Dale Hample, an associate professor at the University of Maryland wrote in a 1980 study on liars. “The liar knows that lies should not be told at all and so lies only when rewards are both assured and large.”
Barack Obama, Hillary Clinton, Ronald Reagan, Dwight Eisenhower and probably every politician ever has used spin or told some whoppers to achieve a specific goal. But the benefit from the stories Trump has spun recently was not only zero, it harmed him. No rational person could possibly have cared how many people attended Trump’s inauguration; anyone could see the same photographs and read the same data about television viewership and Washington’s mass transit usage as everyone else. None could have reasonably believed that the most incredible voter fraud campaign in American history had just taken place, with millions of illegal votes cast for Democrats, particularly when Republicans won most of the key Senate races in that election and maintained control of the House. He could have said nothing about those two topics and no one would have thought the worse of him. But if he knows he is lying, he not only accomplishes nothing, he harms himself by showing he will lie over irrelevant trivialities. And that raises the question of whether he knows when he is lying.
“Although deception is in almost everyone’s social repertoire, it is generally employed as a tactical or strategic option of last resort,’’ said Dr. Timothy R. Levine, a communications professor at Michigan State University who co-authored a 2010 report on experiments about lying. ”Absent psychopathology, people do not deceive when the truth works just fine.”
President Chaos Collides With Reality
The first two weeks smelled and felt utterly ad-hoc, with Trump and his team calling audibles, fumbling, and racing toward the next play rather than looking back at the wreckage of the first.
02.04.17 1:05 PM ET
The first two weeks of Donald Trump’s Presidency made it clear: Trump’s Gonna Trump. No newfound dignity for him. It was instead, as the rules of Reality TV Presidency demand, quite a show: an ongoing street brawl with the media; post-truth “alternate facts” about voter fraud; a jealous hissy fit befitting a tween girl about inaugural crowd sizes, a graceless and weird performance in the CIA’s most sacred space. And, of course, our low impulse-control President is still up to his old tweeting tricks.
We had topsy-turvy Head-of-State calls where Trump insulted and demeaned our allies, executive orders that essentially pissed off 1-billion-plus Muslims, not-so-subtly threatened to invade Mexico (boosted by his threatened domestic invasion of Chiraq). Steve Bannon displaced Generals on the National Security Council, a disastrous special-ops hit on Yemen that would have been attacked as ‘Benghazi 2’ if hatched by Hillary. And a Supreme Court nominee received the Rose from Bachelor Trump.
On the upside, White Nationalist Richard Spencer became a permanent meme for getting cold-cocked on a DC street corner while talking about Pepe. In the age of Trump, we thank God for small moments of hope and humor.
Reading the two dense paragraphs above reminds me I barely scratched the surface of the Trump Show’s opening act. Obviously, President Bannon and Vice President Trump wanted the shock-and-awe phase to break the spirit of the media while throwing out a lot of candy to conservatives to amp them up in advance of the coming collision with reality.
His leadership rests on showmanship over substance, fear of the “other” over faith in our fellow Americans, and a revanchist politics like that puts the bully in bully pulpit like we’ve rarely seen.
That’s a problem; the world is coming at Trump’s White House, and fast. For those who have opposed Trump from the start, or those on both the right and left who still find him ideologically, politically, and morally repugnant, take heart. No Administration can run at this pace for long, and the Cat 5 Chaos Hurricane of the first two weeks is unsustainable.
As transgressive (and lucky) as Trump the campaigner proved to be, as President he faces something to which he’s never been accustomed to in his personal, business, or political life; accountability. That accountability comes not only in the awesome power to send men and women into war, but to the promises he made, to the people he now leads, and to the oath he swore.
We know he’s not good with promises, and we know he’s not good with commitments, but he’s not just Donald Trump, alleged-billionaire playboy and smack-talker. He’s now the President of the United States. The proverbial buck stops on his desk, and can’t be erased with a quickie divorce, a convenient bankruptcy filing, or racing to some new gimcrack casino opening or golf course ribbon-cutting.
Tweeting, insults, bluster, and bullshit aren’t going to substitute for promises kept and success demonstrated beyond the Two Minutes Signing of the daily Executive Order show. They’re not going to replace steady, outwardly-directed, mature leadership when crises hit…and crises will always, eternally, and inevitably hit. Externalities in foreign affairs, the economy, shifting approval numbers, natural disasters, scandals (and oh, what scandals we’ll have), the complexities of repealing Obamacare and an avalanche of other issues can’t all be blamed on duh liburl media or Barack Obama. As President, there will be plenty of retrospective blameshifting, just as Obama did to excess with George W. Bush, but Trumpian promises of miracles tailored to his base aren’t going to live or die based on Obama’s legacy.
The first two weeks smelled and felt utterly ad-hoc, with Trump and his team calling audibles, fumbling, and racing toward the next play rather than looking back at the wreckage of the first. As the SEALS say, the only easy day was yesterday. Overseas, our allies are in a rising state of panic at Trump’s willful destruction of the West’s global security alliance in favor of the Bannon-Flynn-Putin version of the Molotov–Ribbentrop Pact in their war against Islam.
Congress — for now — has largely abandoned its role as a check against the onrushing chaos and inevitable abuses of Donald Trump. As Trump’s mistakes pile up, Congress will be left on cleanup detail. They’re already quietly chafing over it, but publicly they continue to live in abject terror of a Mean Tweet. As he leaves them holding the fecal end of the stick, expect the quiet mutterings to grow. Trump won’t have his town halls filled with angry seniors this Spring and Summer, but our Republican congressmen sure will.
The media is slowly – agonizingly, almost painfully – trying to find its way in the storm of Trump. In the election they played a dangerous game and lost. They helped select and elect Trump, played by his rules, on his tempo, and largely ignored the blazing alarms about his background, character, business entanglements, and mental fitness to serve as President until it was too late. They loved — and profited from — the spectacle of Trump. They assumed (as did every pollster in the known universe) he would inevitably lose to Hillary Clinton. Now, they’re facing a man who loves hagiographers with the same intensity he hates journalists, who has turned the White House press room into a pillory for professional reporters. They’ve finally learned to use the word “lie” to describe the mouth-hole movements of almost all Trump surrogates.
The right’s media long fought to promote conservative ideals, polices, and thinkers. And while it desperately wants to use Trump as a singular weapon against the mainstream media, many know Trump is utterly contemptuous of conservative policy, indifferent to ideas, and operates on a calculus of how lavishly he has been praised. For outlets chasing the Hannity/TrumpBart front-runners in the Sucking-Up Olympics, they are utterly blind to the fact that in a race to see who can more vigorously stroke Trump’s colossal ego they will lose, and lose badly to the weaponized elements of the propagandistic nationalist populist “media” Steve Bannon and Donald Trump prefer.
It will be interesting to see how long the click-friendly posture many have taken will hold up against the reality that Trump’s handlers are (white and otherwise) nationalists. They’ll have to ignore the missteps, the personal weirdness, the lack of rigor, and look politely away from whatever authoritarian tendencies he displays, no matter how many statist economic absurdities he proposes, and no matter how he thoughtlessly compromises our national security for talk-radio solutions of complex problems.
The tensions are building. The collision with reality is coming. Welcome to week three.
Remembering the Holocaust in the Time of Trump, When Jews Fleeing Horror Were Denied Asylum in America
A long-buried documentary, co-directed by Alfred Hitchcock and produced by Sidney Bernstein, provides unequivocal proof of the Holocaust’s horrors. Bernstein’s daughter, Jane Wells, opens up about the film—and why Donald Trump and Jared Kushner should see it.
This Friday marked Holocaust Remembrance Day, the 72nd anniversary of the Soviet liberation of Auschwitz-Birkenau—a network of Nazi concentration and extermination camps that claimed the lives of an estimated 1.5 million people, most of them Jews. President Donald Trump chose to commemorate the occasion by releasing a public statement omitting any mention of Jews or the scourge of anti-Semitism (breaking with past GOP and Democratic tradition), and signing an executive order barring refugees and citizens of seven Muslim-majority countries from entering the United States, including Syria, Iraq, Iran, Libya, Somalia, Yemen, and Sudan.
“It’s repulsive,” Mark Hetfield, president and CEO of the Hebrew Immigrant Aid Society, told CNN. “I mean, the timing is incredibly offensive. It was during the Holocaust that the world shamefully refused to give asylum to Jews and to others who were being murdered or about to be murdered in Nazi Germany.”
Indeed, during the Holocaust, as millions of Jews were being slaughtered by the Nazis, the United States enforced strict immigration quotas against Jews from Germany and Eastern Europe.
In June 1939, the ocean liner St. Louis sailed into the Port of Miami with 937 refugees onboard—nearly all Jewish and seeking asylum in the United States. They’d already been turned away from Cuba and Canada, and when they were denied entry into America, the ship was forced to return to Europe where many of its passengers were killed in the Holocaust. Even Anne Frank’s family made several desperate attempts to emigrate from Europe to America, only to be denied visas.
This closed-door policy was an extension of the Immigration Act of 1924, which sought to, in the words of dissenting Jewish-American politician Emmanuel Celler, create “a distinct American identity by favoring native-born Americans over Southern and Eastern Europeans in order to ‘maintain the racial preponderance of the basic strain on our people and thereby to stabilize the ethnic composition of the population.’” Both Congress and the public believed that these Southern and Eastern European immigrants, many of whom were Jewish, would take away jobs from Americans plagued by the Depression, and were racially inferior. Asians and Arabs were banned entirely.
There was also widespread paranoia concerning a “fifth column,” or the theory that, should Germany or Japan invade the U.S., embedded spies from those countries would help destroy America from the inside. This led to the cruel internment of Japanese-Americans, and the curbing of U.S. visas to those from Axis countries.
At a June 5, 1940, press conference, President Franklin D. Roosevelt stated: “Now, of course, the refugee has got to be checked because, unfortunately, among the refugees there are some spies, as has been found in other countries. And not all of them are voluntary spies—it is rather a horrible story but in some of the other countries that refugees out of Germany have gone to, especially Jewish refugees, they found a number of definitely proven spies.”
This fear of immigrant spies was mostly just that. With the exception of a few highly publicized cases, including that of 28-year-old German Herbert Karl Friedrich Bahr, there’s been no evidence of a mass influx of immigrant spies during this time. In fact, there exist striking parallels to the GOP and President Trump’s Muslim immigrant panic of today, given that, of the 784,000 refugees settled in America between September 11, 2001, and October 2015, only three have been arrested for plotting terrorist acts. “And it is worth noting two were not planning an attack in the United States and the plans of the third were barely credible,” wrote Kathleen Newland of the Migration Policy Institute. The terrorists behind the San Bernardino shooting, Pulse nightclub massacre, and Boston Marathon bombing were all U.S. citizens.
Earlier this month, the film German Concentration Camps Factual Survey was quietly released into select North American theaters. Produced by Sidney Bernstein, advisor to the British Ministry of Information, and co-directed by his pal Alfred Hitchcock, the documentary is comprised of footage shot by Allied American, British, Soviet, and Canadian combat cameramen as they liberated ten concentration camps, including Auschwitz, Bergen-Belsen, Buchenwald, Dachau, and Majdanek. The images are unforgettable, from Nazi physician Fritz Klein being interviewed on top of a pile of bodies at Bergen-Belsen to long, uninterrupted pans capturing stacks of eyeglasses, wedding rings, toothbrushes, human teeth, and bags of hair collected by the Nazis. There are even collections of lampshades made of human skin.
“The panning shots were Hitchcock’s idea,” says Jane Wells, the daughter of Bernstein whose non-profit, 3generations, put out Factual Survey. Hitchcock advised Bernstein and his crew of soldier-documentarians by phone, and suggested the continuous takes because “he felt that people wouldn’t believe what they were seeing otherwise.”
Unfortunately, the film was never completed for a variety of reasons. It wasn’t until 2008 that the Imperial War Museum, using the original filmmakers’ rough cut, script, and shot list, finalized the editing process. The 75-minute finished film premiered 69 years after it was shot, at the 2014 Berlin International Film Festival.
“I tried to enumerate the different explanations,” Wells tells me, before taking out a notepad and reading from it. “One was the fear it would alienate Germans when they were trying to rebuild Germany after the war. The second one is the British government didn’t want to build support for a Zionist state. The third is they didn’t want to create undue sympathy for Jews in particular, or to single Jews out for poor treatment. And the fourth one, which is the Imperial War Museum’s theory, is that its time had come and it had missed its moment.”
Its shelving was devastating to Bernstein, who refused to speak publicly about what Wells calls his “great secret” until he was interviewed for the 1985 documentary A Painful Reminder, which contained footage from his film. Parts of Factual Survey were also used in Billy Wilder’s 22-minute concentration camp documentary Death Mills (Die Todesmühlen), released in January 1946.
“Unless the world learns the lesson these pictures teach, night will fall,” Factual Survey’s narrator says. And according to Wells, “it’s hard not to see the parallel to today,” given the rise of white nationalism in the U.S. and abroad corresponding with the rise of Trump, candidate Trump dog-whistling to white nationalists during his campaign by sharing anti-Semitic memes that originated on neo-Nazi online message boards, and the ascendance of Steve Bannon, former overlord of the “alt-right” publication Breitbart turned Trump right-hand man, who’s been accused of serial anti-Semitism.
“To me, it’s horrific. I’d love to invite the President and Jared Kushner to come see this film, and love to encourage any Jews who supported Trump to come see this film. I know Jews who voted for Trump, and if you ask them about the rise of white nationalism or the ‘alt-right’ in the wake of Trump, they’ll say, ‘Oh, well his son-in-law is a Jew! His daughter keeps a kosher kitchen, how bad can it be?’” say Wells. “The rise of the ‘alt-right’ is completely awful. The way Jews have been called out on Twitter is horrible and disgraceful. I’d like some of these ‘alt-right’ people to also come see this film and try and explain to me why they think this didn’t happen or didn’t matter.”
“If you see this footage, “ she adds, “there is no way on God’s earth that you can argue this didn’t happen.”
Wells had initially planned to release German Concentration Camps Factual Survey theatrically on Jan. 27, 2015, in honor of the 70th anniversary of the liberation of Auschwitz. The film didn’t make it to cinemas until January 6thof this year, but she believes that, given the Syrian refugee crisis, it “will have more of an impact today than it would have even then.”
“It is a cry for reconnecting to our humanity, and I think that is a message that is very resonant today,” offers Wells. “When I look at the atrocities that are happening in Syria today, when I look at the situation with Native Americans in North Dakota, when I look at the rise of the fascistic far-right globally, it seems like we have forgotten some of our common humanity.”
‘BEWARE THE BEGINNINGS’
How the Nazis Took Control of Germany
Hitler was not that popular when he first took office, but the Nazis quickly changed that, for the simple reason that power magnifies the ideas of those who hold it.
Today, Jan. 27, marks the 72nd anniversary of the liberation of Auschwitz. That event did not mark the end of the Holocaust—gassings continued until the eve of Hitler’s suicide on April 30, 1945, and thousands more died of the effects of starvation and mistreatment at places like Belsen even weeks after their liberation.
But Jan. 27 should put us in mind of the beginnings. How did this happen? In particular, how could Germany, by all outward indications a civilized and modern country, become a persecuting society, brutally indifferent to the fates of anyone outside its supposed “people’s community”?
These questions should worry people for all time.
Adolf Hitler was a minority choice to lead his country; when he took office, roughly 55 percent of Germans had never voted for him. Anti-semitism was prevalent in German culture but by no means dominant or respectable. The nation’s elites (the establishment) generally regarded the Nazi führer with disdain and mistrust and doubted his capacity to run a government, given his complete lack of experience at doing so. The consensus about the Nazis’ wild-eyed promises was captured by the oft-repeated German proverb, “Nothing is eaten as hot as it’s cooked.”
Six years later, most Germans were acquiescing, and many of them were trying to benefit from, the complete humiliation and dispossession of German Jews, their demotion to “subjects” of the Reich, and their forced expulsion from the country. Three more years on, most Germans, including those elite corporate leaders and civil servants who scorned Hitler in 1933, were not just turning a blind eye to, but facilitating enslavement and mass murder… and finding a great many helpers in the Axis-occupied and Axis-allied regions of Europe.
The key to understanding the transformation of Germans’ behavior is straightforward: power magnifies the ideas of those who hold it. Power enabled the Nazi regime to unleash the haters, to intimidate the squeamish, and to change the moral valence of prejudice from something frowned upon to something glorified as patriotic. Once that happened, individual self-interest took care of the rest.
Above all, power enabled the propagandists for Nazism to divide the world relentlessly into Us vs. Them and to shut down more nuanced perspectives. To Germans, the world became a perpetual struggle between poor, virtuous, and victimized Us, and malevolent, conspiratorial, and implacable Them. In such an unforgiving environment, all means of self-defense were justified, including preemptively striking Them—taking their rights away, concentrating them in camps and ghettos, wiping them out—before they supposedly had a chance to do their worst.
Demonization of “Them” is always the first step toward persecution and genocide. And an essential prerequisite for demonization is its proponents’ sense of victimization, of having been or being about to be robbed of a birthright. The adherents of modern anti-semitism, not only in Germany but elsewhere in Europe, were people displaced and diminished by the Industrial Revolution and threatened by the specter of communism. In our own day, the devotees of nativist populism, not only in the U.S. but also in Europe, are people declassed and disoriented by the digital revolution and alarmed by the rise of Islamism. Will they go the way of the Nazis toward ever escalating paranoia and persecution?
Only if governments help them. Populist movements, on their own, can’t make persecuting societies or generate genocides. These phenomena need office-holders to countenance, stimulate, and implement hatred. Only when powerful leaders choose to let discrimination and violence take hold, and then to accelerate these lusts, does systematic degradation, let alone mass murder, result.
That is the challenge the Holocaust poses all these years later: Which way will political leaders go? Toward feeding angry and vengeful segments of public opinion or toward promoting pluralism and progress? Because the prospects look chancy right now, we should all recall the words of another German proverb—“Beware the Beginnings”—and be ready to act on it.
Peter Hayes is professor of history and German and Theodore Zev Weiss Holocaust Educational Foundation professor of Holocaust studies emeritus at Northwestern University. W. W. Norton & Co. published his new book,Why? Explaining the Holocaust, on Jan. 17.
I am sharing this with you because we just celebrated Holocaust Remembrance Day. Trump made a statement in which he mentioned all of the victimized people except the Jews. The Jews do know they weren’t the only people to be targeted; so were the Gypsies and the Poles, the disabled, Catholics and homosexuals. Six million Jews were gassed, burned, died due to medical experiments, died from starvation, disease and exposure to the elements.
It is very dangerous when a leader goes after one particular group of people; when people in power say the “others” were less than human, responsible for all of the things that Germans found wrong with their lives; these “others” were sneaky and not to be trusted. We now have a man in the White House who is targeting Muslims, refugees, homosexuals and non-Christians, in exactly the same way, with most of the same rhetoric. How much is he capable of doing? Is he able to begin to round up people from these groups? Only time will tell.
In the meantime, I want to remind everyone that we all live here on this fairly small planet. I do believe in science, and science tells us the planet is suffering from our lack of proper stewardship. We are all brothers and sisters despite the minor differences between us. Whether you are black, red, brown, yellow, or white, we are all equal. Yes, I know that some people say there is a difference but they are wrong. Those who savor their entitlement want to be at the top of the heap, but we all make a beautiful colorful mix together at the bottom.
No one race is better than another, no one religion is better than another. There is no reason to defile Islam by shedding innocent lives. There is no reason to condemn Shiites or Sunnis. Each is a journey to Allah. Or Adonai. Or Buddha. Or any of the other Beautiful Names which people use when they speak of God. We are all children of the Universe, made from stardust. It matters not by what name we call God. Our prayers are heard, our petitions are accepted, and our gratitude pleases.
I believe Trump wants to divide people even more than they already are. I believe it is important to unite together to give support to each other, so no one ever has to stand alone. I am ready to register as a Muslim. I hope many of you will be also. Let us do what is right not what is expected.
On his fourth day in office, President Trump took executive action that signaled his desire to complete the construction of the Dakota Access Pipeline. He signed a memorandum ordering the Army secretary and the U.S. Army Corps of Engineers to “review and approve in an expedited manner… requests for approval to construct and operate the DAPL” as well as an executive order to “streamline and expedite” the environmental review and approval process for so-called “high priority infrastructure projects.”
Trump’s outrageous and provocative executive actions took many people by surprise — even the new Republican governor of North Dakota was not consulted before it was signed. People and water protectors we met with this week in Standing Rock were furious and fearful. Despite this, water protectors say they are very resilient and ready to continue their opposition to the pipeline that many call “the black snake.”
Since August, when the protests against the construction of the oil pipeline reached historic proportions and made major headlines, some Native-American water protectors and allies have been seriously injured by the indiscriminate use of life-threatening crowd-control weapons by law enforcement. Over 300 protestors have been hit with water cannons, tear gas, rubber bullets, concussion grenades, and mace ― weapons that Physicians for Human Rights have reported can cause emotional, psychological, and physical harm to victims. People across the globe witnessed much of this abuse through live video feeds shared through social media and footage taken by independent indigenous drone journalists.
There has been little, if any, leadership from local authorities to curtail the well-documented abuses. The Morton Country Sheriff’s Department has not released any protocol or procedures for the use of potentially deadly crowd-control weapons. There has been a resounding lack of accountability for law enforcement agents and commanders. Thus far, no officer has been charged with excessive use of force, but over 600 protestors, and even journalists like Democracy Now’s Amy Goodman, have been arrested for excessive and outrageous charges like criminal trespassing. Some were hit with outlandish felony charges and high bail bonds. More than likely, if state leaders do not require a significant change in policing tactics, law enforcement will only continue its violent and unconstitutional responses to largely peaceful protesters.
We’ve also seen law enforcement outsource their human rights abuses to private security contractors. This must be investigated, and the people responsible for releasing dogs on protestors should be held accountable. After all, even the Department of Justice has condemned the use of canines on unarmed individuals as “unreasonable.” While the Morton County Sheriff’s Department claimed last September that it created a multi-agency task force to investigate the use of force by DAPL security, we still do not know if anyone has been held accountable.
Recently, the Standing Rock Tribal Council called for the evacuation of the camps behind the Dakota Access Pipeline protests within 30 days, which means by February 19. However, the question remains whether law enforcement will use force to clear the camps and, whether on accident or with intent, injure or kill someone who refuses to leave in an act of civil disobedience.
The Morton County Police Department should adopt policies and practices for the deployment of crowd-control weapons that align with civil and human rights principles:
The use of crowd-control weapon should be an absolute last resort when dealing with genuine and imminent threats to the safety of those present, and only after all other means have been exhausted
The most effective method to prevent violence is to engage in negotiations and open a dialogue with protesters
Even if some protesters engage in or incite others to engage in acts of violence which require police intervention, the explicit goal of intervention should be to deescalate the situation and promote and protect the safety and the rights of those present — protestors, journalists, medical personnel, monitors, and bystanders
All deployment of crowd control weapons must be documented, and the reports retained for public record
Adequate training must be provided on the use of crowd-control weapons for out-of-state police to ensure a proportionate level of force is applied to the threat
Adherence to these principles will help increase accountability, transparency, and the safety of everyone.
But where local law enforcement quickly resorts to the massive use of less-lethal weapons, it is the responsibility of the state and federal governments to step in. The state and federal governments must rein in the county sheriff and private security contractors, and they must immediately end any unlawful surveillance practices against individuals and groups expressing their right to free speech and peaceful assembly.
Until then, the ACLU will continue to monitor the situation through legal observers and will consider taking legal action including supporting the Water Protectors Legal Collaborative. We have also released an action requesting the public to call North Dakota Gov. Doug Burgum and urge him to do everything in his power to prevent police violence against Standing Rock water protectors. Using crowd control weapons will only exacerbate the injuries and trauma that has plagued Native American communities and water protectors since the pipeline protest intensified this past August.
In his inauguration speech, Donald Trump advocated for the immediate end of “American carnage” ravaging this country. That carnage is occurring right now at the hands of law enforcement in Standing Rock. If Trump truly intends to end unnecessary violence, he must listen to the voices of Native American water protectors and those who are supporting them at Standing Rock, and he must vow to protect their right to water, sacred sites, and their future development as sovereign nations.
Human decency requires it.
The attacks on the rights of the Native Americans to protect the little land the government hasn’t stolen continues. The attacks on our Mother Earth in the name of Capitalism continue.
Unique Nature Art Shop and Information about the environment and anxiety. Art for sale as original drawings, prints, or product with prints on them. Let me help you reconnect with your family and friends with a unique nature art gift.