With a political science degree and over 40 years of study and practice at law in state and federal courts, I think I have some perspective on the law, the Constitution, and the judicial system. The following are some of my thoughts, opinions, and analysis.
The functioning and survival of our constitutional democracy depends upon the vitality of all three branches of government, providing “checks and balances” for failures and overreach of the co-equal branches. We are currently in a state of “constitutional crisis” because of overreach and abuse by the executive branch, abandonment of responsibility and inaction by the legislative branch, and potential complicity bny the judicial branch at its highest level.
The executive branch, headed by Trump [and an unelected co-conspirator Musk] has claimed and attempted to assert unrestricted powers to take actions, including discretionary authority expressly prohibited by the Constitution and laws passed by Congress. Federal court judges have issued rulings enjoining some actions as unlawful or unconstitutional, but Trump has evaded or ignored federal court orders, refused to comply with judicial directives, and threatened to impeach judges issuing rulings with which he disagrees. He has issued executive orders that violate the 1st, 14th, and 5th amendments to the Constitution, as well as legislation prohibiting discrimination. His appointed cabinet officers have followed and amplified this abuse. However, the federal courts have no physical or practical capability to enforce the federal court rulings, no army or police forces to intervene.
The Constitution clearly states that the judicial branch has unique powers and authority to say what the law is and to determine whether actions are or are not constitutionally sound. For 250 years, the nation has operated on the consensus agreement that the executive and legislative branches would accede to the determinations by the judiciary, subject to the process of appellate review up to the determination by the Supreme Court, if necessary. The SCOTUS is, under the Constitution, the supreme arbiter of what the Constitution and the laws permit, prohibit, or require.
The legislative branch has three critical functions: to pass laws that establish governmental policy objectives and programs, to appropriate funds to support and carry out those policy objectives and programs, and the power of impeachment to remove government officials for misconduct amounting to “high crimes and misdemeanors.” The last of these powers is what is in crisis now. To a large extent, the legislative power to impeach depends upon the same public support which the elected members of Congress are supposed to represent. In the case of President Richard Nixon, Congress pursued impeachment with crucial support from respected members of Nixon’s own party. He resigned rather than be removed from office. President Clinton was impeached for lesser offenses, was not convicted, and remained in office. Albeit chastised. Trump was impeached twice during his first term for acts more serious than those against Nixon, but nearly unanimous support from his party members prevented conviction.
This has led to the current crisis where Trump actions substantially exceed the abuses of his first term in scope, damages, and contravention of laws and precedent. The breakdown of the system of checks and balances is serious in two major respects. First, a GOP strategy of installing appointees to the SCOTUS making up a majority who value partisan loyalty above professionalism. That “conservative” majority, an ironic descriptor because their actions reflect radical departures from norms and precedent that the term suggests should be “conserved,” has issued an earthshaking ruling that provides presumptive immunity for the president for any actions and orders that are taken under the guise of presidential authority. Unless and until presented to the SCOTUS, actions by Trump, including those that violate laws and the Constitution or defy federal court injunctions, are presumed legitimate exercise of presidential power, and immune from prosecution even if later deemed unlawful. The second major breakdown is that control of both houses of Congress by Trump’s party, together with overt threats by Trump and Musk to severely penalize any member of Congress who opposes Trump’s agenda has made Congress impotent regarding the power of impeachment. His blatant abuses of power, even when identified by federal judges, will not even be challenged in articles of impeachment so that evidence can be laid bare before the public, even if post-impeachment conviction should fail.
An additional flaw in the fabric of the system of democracy is a failure of the media to support an informed electorate. Certain media outlets, such as FOX, are acknowledged as “infotainment” and are not really expected to broadcast truthful or reliable content. However, the so-called “mainstream” media outlets have succumbed to unprofessional journalistic standards and repeatedly broadcast claims that are not only uncorroborated, but which the news organization and broadcasters KNOW to be false and ungrounded. In addition, they undermine faith in the judiciary by including a tag identifier of who appointed the judge when reporting significant rulings. Who may have appointed the judge should be irrelevant to the substance and implications of the ruling, but the media imply that the affiliation of the party who appointed the judge is the REASON for the judge’s decision. This creates in the mind of the public a politically biased judiciary as a “norm” rather than rulings based upon the law, precedent, and evidence.
Further erosion in the process of informing the electorate comes from technology transformation where literally thousands of voices are vying for media attention and consumer “clicks” and followers. Branding and influencer status outweigh accuracy and reliability. “Noise” and reliability have attained a false equivalency. Those claiming that “vaccines don’t work” are able to attract as much media attention as the decades and mountains of verified research that show vaccines not only work but have prevented millions of deaths. Claims of “government fraud and waste” to support destruction of government agencies and programs can gain priority media access despite the lack of any substantial evidence to back up such claims.
It remains to be seen how much damage will be wrought by Trump and his supplicants pending delays awaiting review of actions by the SCOTUS. It also remains to be seen whether Trump will abide by a decision of the SCOTUS should the majority of justices deem his conduct illegitimate and in violation of the Constitution or other laws. Unfortunately, it is rather predictable that the current Congress will lack the courage or professionalism to attempt impeachment and conviction, which would ostensibly remove Trump’s authority to violate laws, to direct subordinates to assist in his abuse of authority, and to pardon subordinates who violate the law at his direction. And it also remains to be seen whether the nation can recover from the damage that Trump has and will continue to cause, if recovery is possible.