Trump versus the Courts
Well, this is getting exciting.
For those of you who are trying to keep up with events: don’t concern yourself. The cloud of dust that is the Trump administration has a short shelf life. So cheer up.
For those of you who worry about constitutional matters: panic.
We are just getting warmed up.
That some of the actions taken by Elon Musk are illegal is common knowledge. That some of the things Trump himself is advocation are unconstitutional is also common knowledge. That is if you accept the old interpretation of constitutionality. What if you don’t?
Then Trump and Musk are in the clear and are forging ahead with a wholesale reconstruction of America’s system of governance.
The current front line in the battle is Trump’s defiance of court orders. He would not be the first president to push back on, or ignore, an inconvenient court order. Others, as recently as Joe Biden, have done it on the odd rare occasion. Trump, however, is different. He, up until now, is defying the courts on a wholesale basis. That is where the talk of crisis enters into discussion.
The old American system has creaked and groaned along grounded on an assumption that the various components of its system — the executive branch, Congress, and the courts — would act as brakes on one another. The system was designed to enforce an element of compromise. Or inaction. Take your pick. This has made it slow moving and generally unresponsive except in crisis, and even then crisis was sometimes insufficient to produce consensus.
Our current political problem is that we have yet to create a post-neoliberal system that eliminates the undue influence of our wealthy and corporate elite. They may be in retreat, but their rearguard has held off any truly democratic alternative from emerging. Their defeat back in 2007/2008 may have shown them to be stupid, greedy, and incompetent, but the subsequent partisan bickering has failed to rebuild the middle class. We have wallowed in unsatisfactory waters ever since. Inequality has grown acute. Trust in institutions has justifiably dropped like a stone. Crisis has been creeping up on us for over a decade. And our elite has failed, utterly, to provide a new way forward. It is bereft of ideas. It is, in a sense, senile. There is not vitality, no alternative, and no energy behind the necessary reforms. There is a stench of decay and decline. Worse, there is an acceptance of the status quo as if the past will suddenly spring back to life and show us that there is no need for the hard work of modernization.
Hence Trump and his attempt to overthrow the old order.
The old order doesn’t work.
The oddity of this highly abbreviated narrative is that it puts Trump on the right side of history. Which is exactly where I, instinctively, don’t want him to be. He is a stupid, vain, and irresponsible man. He is lazy and incompetent. But he has hit a vital nerve. He is prioritizing the wishes of his supporters. We call that democracy.
And his problem is that America was never designed to be a democracy. As some of his more ardent fans on the very far right will remind us: America is a republic. It was designed to be run by minority power. It was designed to channel democratic emotions into ineffective side channels, whilst the real task of governance was handled by the centrist grown ups who could be trusted to manage affairs of state within a zone of stability and credibility — stable and credible, that is, for folks like themselves.
So here is Trump, a wannabe autocrat or, worse, king, crashing through the system to purge it of its sclerosis because it has no way of purging itself. His followers cheer him on regardless of the damage he might do to the system because, absent democracy, its was never their system.
And that is the key point.
Written constitutions are famously weak reeds to lean on when sufficient energy exists to ignore them. The entire history of America is full of examples. For instance the post-Civil War amendments were mostly ignored for decades because to fulfill their promise would have implied proper racial integration. It took almost a century before the American public could be motivated to obey those amendments. Meanwhile they had been subverted in the courts and deployed to boost business. Paperwork is simply that — just paperwork. If there is a lack of inclination to obey the words, they may as well not exist.
So, while we live in the political no man’s land of the post-Great Recession era, with no consensus of the purpose of our government and its subsequent ineffectiveness, we are, as I said wallowing.
Perhaps flailing is a better word.
Still, let’s see what the courts do. It’s their move next. They have some residual power. They can, for instance freeze Musk’s financial assets and bank accounts. They can even freeze Trump’s assets.
Of course, that would require someone to oversee the act of freezing.
Yes, flailing is a better word.