Even a rudimentary understanding
The Washington Post offers a refresher course on due process:
The man President Donald Trump put in charge of taking a chain saw to federal agencies showed once again this week that he lacks even a rudimentary understanding of the government he is dismembering.
“This is a judicial coup,” Elon Musk proclaimed, reacting to the growing list of federal judges who have moved to halt the Trump administration’s headfirst plunge into lawlessness. “We need 60 senators to impeach the judges and restore rule of the people.”
How did this guy pass his citizenship test?
As the framers wrote in the Constitution, it is the House, not the Senate, that has “the sole power of impeachment.” And the Senate needs “the concurrence of two thirds of the members present” — 67, assuming full attendance, not 60 — to convict.
More important, the framers wrote that judges hold their offices for life “during good behavior” — which has been understood to mean they can only be impeached for corruption. That is how it has been since the 1805 impeachment trial of Supreme Court Justice Samuel Chase, when Chief Justice John Marshall, himself a Founding Father, convinced the Senate to abandon the idea that “a judge giving a legal opinion contrary to the will of the legislature is liable to impeachment.”
Yebbut what about when a judge gives a legal opinion contrary to the will of Donald Trump? Or Elon Musk? Whole different kettle of fish, babe.
[Musk and friends] have issued scores of executive orders that flatly contradict the Constitution and the laws of the land. Apparently, they are hoping a submissive Supreme Court will reimagine the Constitution to suit Trump’s whims — and federal judges have reacted as they should, by slapping down these lawless power grabs. As such, the administration is on a prodigious losing streak in court. Judges, in preliminary rulings, have already blocked the administration more than 50 times.
…
There’s an obvious reason Trump is getting swatted down so often: He’s breaking the law. Instead of changing course, the administration is now trying to discredit the courts — and the rule of law. White House adviser Stephen Miller denounced “insane edicts of radical rogue judges” and declared that a judge had “no authority” to stop Trump. Border czar Tom Homan went full-on authoritarian on Fox News: “We’re not stopping,” he said of the deportation flights a judge had temporarily halted. “I don’t care what the judges think.”
Which being interpreted means: This is a dictatorship.
Trump called the U.S. district judge in the case, James Boasberg (appointed to the bench by George W. Bush and elevated by Barack Obama) a “radical left lunatic,” who, “like many of the Crooked Judges’ I am forced to appear before, should be IMPEACHED!!!” This drew a quick rebuke from Chief Justice John Roberts (in case Musk doesn’t know this, he’s also a Bush appointee), who reminded Trump: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision.” Trump later told Fox News that he “can’t” defy a court order — welcome news, except he apparently had done exactly that in more than one case — while arguing that something had to be done “when you have a rogue judge.”
Someone has gone rogue here, but it isn’t the judge. Boasberg’s actions are squarely within the best tradition of the judiciary, for they are in defense of principle, enshrined in the Bill of Rights, that no person in this country, citizen or alien, may be “deprived of life, liberty, or property, without due process of law.” This is precisely what the Trump administration denied to those it deported and imprisoned.
Violations of due process have been alleged in dozens of the cases against Trump’s executive actions: terminating workers and programs; eliminating grants; violating union contracts; denying care to transgender people; banning the Associated Press from the White House; abolishing civil rights enforcement and everything else the administration calls “DEI”; harassing law firms; and summarily deporting migrants. All of these were done without notice, without recourse, without adjudication and without clarity about which laws give the president the power to do these things.
“Due process” might sound technical, but it was elemental to our founding and remains at the heart of our legal system. Trump’s flagrant denial of due process is so radical that it isn’t only at odds with 200 years of U.S. law — it’s also contrary to another 600 years of English law before that. For the benefit of Musk (who doesn’t seem to know about such things) and his colleagues (who don’t seem to care), perhaps a refresher is in order.
For this, I called Jeffrey Rosen, who runs the nonpartisan National Constitution Center, which finds consensus between conservative and liberal scholars. The concept of due process, he explained, is in the Magna Carta, which in 1215 asserted that “no free man shall be arrested or imprisoned … except by lawful judgment of his peers or by the law of the land.” Britain’s 1628 Petition of Right, written during parliament’s struggle against the dictatorial Charles I, holds that “no man … should be put out of his land or tenement nor taken nor imprisoned nor disherited nor put to death without being brought to answer by due process of law.” The king, who imposed forced loans on his subjects and imprisoned people without trials, was beheaded during the English civil war.
If only we could.
Trump made it quite clear what he would do if elected, so no surprises there, just the surprise that so many Americans are happy to have a dictator.
“Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…”
Winston S Churchill, 11 November 1947
But the sad fact is that too many Americans don’t think that America is a democracy, but a Republic!
Same coin, different sides.
But what matters most is that a Democratic Republic only exists as long as everyone plays by the rules. The GOP has spent 40 years undermining the rules, stacking the Courts, suppressing votes, gerrymandering electorates, all in plain sight, while being cheered on by the ill educated deplorables and their fascist Christian Nationalists.
In “The Power Worshippers” Katherine Stewart wrote “The drive to end public education as we know it is just part of a political movement that seeks to transform the defining institutions of democracy in America. This movement pretends to represent the past and stand for old traditions. But in reality it is a creature of present circumstances and is organized around a vision for the future that most Americans would find abhorrent.”
She was not wrong then (2019) and she is being proven more correct by the day.
I am waiting my copy of her latest “Money, Lies, and God” published just a few weeks ago.
As others have pointed out, there are no penalties for an out of control administration beyond the ballot box. Courts can make orders, but when compliance is refused, they have no enforcement powers. Congress is too weak, and even if Trump were successfully impeached, who would remove him?
To return to Churchill (an evil bastard in many ways, but what a way with words) “At the bottom of all the tributes paid to democracy is the little man, walking into the little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point.” —House of Commons, 31 October 1944.
Even in his darkest moments, or relaxing in a bathtub, whisky in hand, could Churchill have imagined just how little in stature and education, how thoughtless, some would be when they walked into that little booth, made a cross on a little bit of paper, and gave away their democracy.
This didn’t come as a surprise to me; I’ve been watching it happen for way too long. Studies have suggested as much, but most of the studies I’ve seen indicated they wanted a sense of being free, but with someone else telling them what to do. They just want the illusion of a democracy, not the work of a democracy. Well, congratulations. With Trump, you have neither.
Also, way too many people seem to equate ‘democracy’ with ‘I get what I want’. It never occurs to them that the things they want may not be reasonable, and that the people who want something else have rights, too. To them, anyone who wants something different is pig-headed, ignorant, and liberal.
The Republicans have been using the ‘real American’ card a long time. Now a lot of people have identified everyone they think isn’t a ‘real American’, and they want to see them suffer.