Category Archives: Republicans

2020 General Election, Donald Trump, Off the Rails, Republicans

GOP and corporate Resistance fades as Trump doubles down on racist comments

Yes, some Republican leaders spoke out to offer mostly muted criticism of Trump after more than 24 hours, often in the next breath (or the first breath) criticizing the Democratic women of color Trump attacked.

“They’re just terrified of crossing swords with Trump, and they stay mute even when the president unleashes racist tirades,” said presidential historian Douglas Brinkley, who has been critical of Trump. “Republican leaders are now culpable for encouraging this kind of rank bigotry. By not speaking out, by staying mum, they are greenlighting hate rhetoric.”—“Trump’s incendiary rhetoric is met with fading resistance from Republican and corporate leaders,” Toluse Olorunnipa, Washington Post,  July 15, 2019

The WaPo article notes the silence of corporate leaders (including those on the South Lawn of the White House celebrating Trump’s economic policies) as Trump continued to defame four women newly elected to Congress as members of his political opposition.

After some brief remarks about American manufacturing, the president launched into an acerbic screed doubling down on his Sunday tweets that encouraged the Democratic congresswomen, who he said “hate our country,” to leave the United States.

“If you’re not happy here, then you can leave,” he added. “That’s what I said in a tweet that I guess some people think is controversial. A lot of people love it, by the way. A lot of people love it.”

He was met with applause.

It seems that for many people Trump being Trump is hardly worthy of comment any more, even as he ratchets up the racism, xenophobia, and hate. Certainly Trump wouldn’t be Trump without the racism:

Trump has trafficked in racist and racially charged politics for decades, working to keep African Americans out of his and his father’s apartment buildings in Cincinnati and New York from his earliest days in the real estate business.
In 1989, he ran newspaper ads calling for the death penalty after five black and Latino teenagers were accused of raping a jogger. Last month, he suggested the Central Park Five might still be guilty even if they were exonerated by DNA evidence and another man’s confession years ago, saying, “You have people on both sides of that.”
Trump raised his profile as a political figure on the right during President Obama’s tenure by fanning false conspiracies questioning whether Obama was born in the United States.
And he drew some of the strongest rebukes of his own presidency in August 2017 when he said there were “very fine people on both sides” in violent clashes between white supremacists and counterprotesters in Charlottesville, Va.
James Fields, who drove his car into a crowd and killed a woman during the rally, was sentenced Monday to life in prison plus 419 years on state charges. Fields was previously sentenced to life in prison on federal hate crime charges.— “As Trump doubles down on racist comments, House to vote on condemning them,” Noah Bierman, Jennifer Haberkorn, Los Angeles Times, July 15, 2019

(Image: screen grab from local TV of the four newly elected Democratic Congresswomen, popularly known as ‘the squad,’ responding to President Trump’s attacks yesterday.)

Donald Trump, Off the Rails, Republicans, Short & Sweet ... Short & Sour

The Republican Party stands foursquare behind this man and his Presidency

So interesting to see “Progressive” Democrat Congresswomen, who originally came from countries whose governments are a complete and total catastrophe, the worst, most corrupt and inept anywhere in the world (if they even have a functioning government at all), now loudly……
….and viciously telling the people of the United States, the greatest and most powerful Nation on earth, how our government is to be run. Why don’t they go back and help fix the totally broken and crime infested places from which they came. Then come back and show us how….
….it is done. These places need your help badly, you can’t leave fast enough. I’m sure that Nancy Pelosi would be very happy to quickly work out free travel arrangements!

— Donald J. Trump (@realDonaldTrump) July 14, 2019

Democracy, Democrats, Republicans

A primer on the asymmetric political parties in the United States

(Or: ‘How the Republican Party became an insurgent outlier – Part 1’)

“The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.” — Thomas E. Mann and Norman J. Ornstein

In It’s Even Worse Than It Looks: How the American Constitutional System Collided with the Politics of Extremism, Mann and Ornstein credit political scientist Stephen Skowronek with attaching the term ‘insurgent outlier’ to the GOP, while absolving him of the details of their analysis. By now, the increasing extremism of the Republican Party—long before Donald Trump’s ride down the escalator—has been widely (if not universally) acknowledged. As has a second element of Mann and Ornstein’s critique: that this GOP transformation is the first place to look to explain the highly dysfunctional state of the American political system.

While it’s easy to identify villains in this story—I’ve written multiple posts featuring Newt Gingrich, Mitch McConnell, Lindsay Graham, and William Barr, for instance—I’d like to sketch a structural explanation of how we got here. So, in today’s installment, I’ll begin with a look at the asymmetrical nature of the two political parties, inspired by Matt Grossmann and David A. Hopkins’ book, Asymmetric Politics: Ideological Republicans and Group Interest Democrats, and their account contrasting the Democratic Party, a coalition of social groups, and the GOP, the vehicle of an ideological movement.

The Democratic Party

‘President Franklin D. Roosevelt’s smashing victory in the 1936 presidential election revealed that the American political landscape had shifted. With FDR at its head, the Democratic Party put together a formidable coalition whose main components were lower-income groups in the great cities—African Americans, union members, and ethnic and religious minorities, many from recent immigrant groups—and the traditional source of Democratic strength, “the Solid South.”‘ — William E. Leuchtenburg  

The New Deal coalition, which dominated American politics from 1936 until the election of Richard Nixon in 1968, fractured with the election of Ronald Reagan in 1980. But while the composition of Democratic constituencies changed (most prominently with the loss of the Solid South), the fundamental structure of the Democratic Party did not.

The Democratic Party is a coalition of social groups. Because the groups, and their public policy agendas, are separate and distinct, what they bring to the table may generate conflict within the coalition. Indeed, Democrats have a reputation—going back to the 1930s—for dissension and discord. Unifying many groups with their own interests and ideas is challenge. The process of coming to agreement may be chaotic—and, over many decades, the picture hasn’t always been pretty.

  • “I am not a member of any organized political party. I am a Democrat,” Will Rogers remarked in an era when the New Deal Coalition prevailed.
  • The 1968 Democratic Convention, when the New Deal Coalition was near its end, stands as the prime exemplar of Democratic disunity in my lifetime. (Both 1948 and 1972 were fractious years for Democrats, but neither are remembered for violent street clashes, while the first one, in any case, was before my birth.)
  • A half century after 1968, “Democrats in Disarray,” remains a hoary meme (and click-bait), because disagreements are inevitable when many different interests are crowding under a single tent (and journalists need a hook). The Washington Monthly explored this topic in March, while Crooked / Pod Save America offered fifteen links on the topic last week. A simple Google search will virtually always find current examples of this genre.)

The perennial challenge for Democrats is crafting a coherent policy from the disparate views and interests of the various groups coalescing under the party banner.

Democrats pledge to represent ‘everyday Americans’ (‘the forgotten middle class,’ ‘the people,’ ‘the common man’) with a contrast (often explicit, sometimes implicit) to Republican commitments. The Democratic electoral base is comprised of groups that regard themselves as disadvantaged, and look to specific government policies and programs to provide a measure of social equity.

These constituencies have this in common: they believe that government can help people like themselves.  They believe that public policy is capable of solving problems, of offering benefits, of providing redress for injustices. That notion had little traction in Washington in the decades before FDR came into office. President Roosevelt, and the Democratic Party that he led, empowered government, expanding its role and responsibilities, to ensure that the economy benefited a majority of Americans.

Government can help make people’s lives better, Democrats agree. But because they’re a diverse bunch, their experiences of disadvantage—and specific public policy preferences—are different. How do we unify these groups and their program and policy preferences?

The Democratic Party’s solution is to wrap its arms around these groups, to acknowledge the disadvantages (problems, injustices) of each—and to embrace specific public policies to change things for the better.

The Democratic agenda—as represented in the party platform, political campaigning, legislative priorities, policymaking, and regulatory enforcement—is formed from the collective demands and appeals of the disparate social groups that comprise the coalition. 

Grossmann and Hopkins, who cite Dean Acheson (1955) and a trio of studies from political scientists (1966, 1976, and 1983) making similar observations, put it this way:

The coalitional composition of the Democratic Party has long encouraged party leaders to assemble a policy agenda from the aggregated preferences of the party’s numerous constituencies, courting the mass electorate with a large assortment of concrete benefits favoring targeted groups. Although the particular groups inside the Democratic “big tent”—as well as their specific programmatic demands—have evolved over time, the party’s foundational partisan character has remained constant for decades of electoral history.

This model has the great virtue of matching our familiar experience. A list of Democratic constituencies circa 2019 would include: women, African Americans, organized labor, voters under age 35, … and so on. Consider women, who are far and away the largest social group in the Democratic coalition. Clear majorities of women consistently vote Democratic and have done so for decades. (Discussion of the political gender gap began in the Reagan era. The gap has grown considerably since then, especially in our most recent electoral cycles.)

The Democratic Party is responsive to this voting constituency, as reflected in Democrats’ advocacy of specific policies and priorities to benefit women. Health care—salvaging the Affordable Care Act in response to efforts by Congressional Republicans, egged on by Donald Trump, to repeal it—was at the heart of Democratic campaigns in 2018. Women voters played the starring role in the Democratic victory to take back the House.

Accessibility to health care is high on the list of concerns of most women who vote (or may be tempted to vote) Democratic. Access to reproductive health coverage—and the right to choose to end a pregnancy—is a crucial element of health care. While abortion is fraught politically (particularly late-term abortions) in some quarters, the great majority of women—and especially those who identify as or lean Democratic—do not want to be denied the right to make this choice on their own. Ensuring this right is a Democratic priority.

Democrats embrace many other issues that resonate with women: the Equal Rights Amendment, equal pay for equal work, gender discrimination in employment, family budget concerns more generally, and  sexual harassment and violence toward women are all issues that appeal to the largest group in the Democratic coalition.

The contrast with Donald Trump’s Republican Party couldn’t be clearer. Trump has boasted of sexual assault of women, repeatedly assessed women’s worth based on appearance and sexual attractiveness, and insulted women in misogynistic terms. This hostility has increased Democratic support among women, but that’s only part of the story with the contemporary GOP.

In swing districts and, in many instances, in previously stable Red districts that flipped in 2018, Democratic candidates often presented a clear contrast with Trump and Congressional Republicans vis-a-vis respectful discourse; regard for the rule of law, for democratic institutions, and for coming together—to compromise with the other side, as needed—to enact meaningful legislation to benefit the people that Congress and the President were elected to serve; and concern with the welfare of the nation as a whole, not only of the GOP base. These are hardly ‘women’s issues,’ but they resonated with the largest social group in the Democratic coalition. Women who feel threatened by Trump and the GOP have every reason to regard these issues as critical to their interests and well-being.

Wage Gap

Elizabeth Warren’s pledge last week to women of color at the Essence Festival illustrates how an injustice toward a social group prompts a policy response among Democrats. Begin with these facts: white women earn 77 cents for every dollar that white men earn, while black women earn 61 cents and Latinas, 53 cents. That, for Democrats, counts as a prima facie injustice.

In Warren’s words:

Black women are more likely to be breadwinners for their families and work more than almost any other set of women workers in America, including white women. Yet, Black women are paid less and they are less likely to be able to afford basic human rights like healthcare, childcare and housing.

And her response:

On day one of the Warren Administration I will take a set of executive actions to boost wages for women of color and open up new pathways to the leadership positions they deserve. I’ll start by putting tough new rules on companies that contract with the government — who collectively employ a quarter of the American workforce. Companies with a bad track record on equal pay and diversity in management won’t get new contracts — which gives them a big financial incentive to shape up. I will prohibit companies that want to get government contracts from forcing employees to sign away their rights with forced arbitration clauses and non-compete agreements — restrictions that are particularly hurtful to women of color. I will also take executive action to make the senior ranks of the federal government look like America and strengthen enforcement against systemic discrimination. We need to demand that companies and the government properly value the work of Black women — and hold them accountable if they don’t.

These executive actions are just a first step. . . .

We could inventory every social group/voting bloc that coalesces within the big tent of the Democratic Party and match emblematic concerns and priorities among group members, on the one hand, with commitments and programs that Democrats embrace, on the other, to show piece by piece how the Democratic agenda emerges.

Inevitably, there will be disagreements among the groups. Negotiation, forming alliances, and generating consensus—a give and take, the stuff of politics and practical compromise—will come into play. In this way, the party advances the interests of the groups in its coalition in a process that mostly plays out in the open.

Getting it right can be tricky. In addition to balancing the interests and preferences of multiple groups, the party must look ahead to competitive elections against the Republicans. In such an environment, not every group will be a winner (at least in equal measure with others in the coalition). Similarly, once in office, Democrats are unlikely to enact every item on their agenda; some programs and policies will win out, while others will not. (Barack Obama, the most recent Democratic president, put the expansion of health care at the top of his agenda, while choosing not to elevate criminal indictments of the financial sector executives who crashed the economy.)

While some preferences must be deferred, however, generally everyone with standing in the party is heard. Inclusion is a Democratic priority. There is an expectation that every group’s preferences will be reflected in some measure in the party’s agenda. As Jo Freeman put it (in an article surveying the cultural differences between the Democratic and Republican parties), “The word that would most aptly characterize what Democrats want is ‘fairness.’”

This picture of the Democratic Party (going back roughly eight decades) is more or less the traditional view of how politics works in the United States. It is not, however, the way things work in the contemporary Republican Party.

The Republican Party

The Republican Party is an altogether different beast than the Democratic Party. Ideology reigns supreme in the GOP, which serves as the vanguard of movement conservatism.  Republicans, and organizations within the party, self-identify as conservative. Fidelity to conservative ideology is the organizing principle of the Republican Party. This ideology motivates activists, generates campaign themes and pledges, sustains the demands of the base, and provides a rationale for the party’s governing agenda.

In contrast to Democrats—who, as we have seen, look to government for practical remedies on behalf of social groups experiencing disadvantage—Republicans view proposals in relation to abstract ideological doctrine. The question is not whether a proposal would be efficacious or cost-effective or fair, but instead: Would implementing the proposal be consistent with conservative ideology? As the Republican Party has moved further right in recent decades (and ideological hostility toward government has grown), the possibilities of getting to ‘Yes’ have diminished considerably, especially regarding any proposal offered by Democrats.

In governing, Democrats accept that group interests will conflict, that negotiation and compromise will take place, and that trade-offs and even half measures may result. And that’s okay much of the time: half a loaf is better than none.  Democrats reward leaders who get things done, often even when victories are only partial. Not so with Republicans. Their preference is often all or nothing. They are looking to leaders who will not stray from a rigid party line. The touchstone is conformity to the party’s ruling ideology.

The primacy of conservative doctrine has become increasingly more entrenched in recent years, as illustrated by an observation by Jacob Hacker and Paul Pierson (in Off Center: The Republican Revolution and the Erosion of American Democracy):

As conservative activism has shifted toward national politics, it has also focused increasingly on the recruitment and certification of aspirants to elected office and the monitoring and punishment of politicians once they are elected. Ideological “box scores” are a revealing indicator of the trend. A few decades ago, only a handful of prominent conservative groups (notably, the American Conservative Union, or ACU) assembled ideological issue scores based on members of Congress’s recorded votes on hot-button topics. Today, the ACU’s scores compete with those of such conservative watchdogs as the National Tax Limitation Committee, Americans for Tax Reform, the National Taxpayers Union, Citizens Against Government Waste, the Republican Liberty Caucus, the Christian Coalition, the Eagle Forum, the Campaign for Working Families, the Family Research Council, and the subtly named Center for Reclaiming America. These groups range in size and clout. But even the smallest can often exert considerable power when it can credibly claim to be the arbiter of whether a candidate or elected official is a true believer in a central conservative cause.

Being “a true believer in a central conservative cause” often precludes getting anything done. Republican voters reward elected officials who uphold doctrinal purity, shunning compromise altogether. These voters carry out “punishment of politicians” who fail in this regard. Increasingly, these collaborators get primaried because Republican voters won’t stand for any ideological deviation or accommodation with Democrats. Moreover, often a symbolic ideological embrace, the conspicuous expression of fidelity to conservatism, matters more than the actual substantive outcome of their stance.

House Speaker John Boehner’s tenure was an extended case study of this dysfunctional dance as members of the Freedom Caucus repeatedly chose to one-up their conservative colleagues with expressive displays of ideological purity, even as they sabotaged Republican policy preferences. This self-defeating gamesmanship continued with the elevation of Paul Ryan to the Speakership, as Jonathan Bernstein related during one of the skirmishes:

Democrats only have leverage to negotiate a fairly good deal because Ryan’s Republican conference was split, with Ryan knowing he would never have the radicals’ votes on anything that could even get a simple majority in the Senate. That meant Ryan would eventually need Democratic votes, which meant everyone knew from the start that some Democratic priorities would wind up being fulfilled despite the large Republican majority in the House.

What the Freedom Caucus gets out of it is the chance to win in the Real Conservative game … at the cost of actual conservative policy preferences.

It wasn’t always this way in the GOP.

The Republican Party of the 1950s and 1960s was ideologically diverse in this sense: there were moderate Republicans and even liberal Republicans in the party. They were, like their conservative brethren, Republicans in good standing. No longer. The conservative movement, which seized the nominating apparatus of the Republican Party in 1964, by the Reagan era not only dominated debate and decision making within the party, it had begun to make the party inhospitable to moderate and liberal Republicans. In more recent decades, ritualistic purges through primary elections came to dominate Republican Party politics, but the seed was planted long before.

When William Buckley declared that his foe was “the Liberal Establishment,” Republicans were as much in his sights as Democrats. This included Republican President Dwight David Eisenhower, whose views on both domestic and foreign policies have no place in today’s Republican Party. In 2019, self-identification as conservative is required of all Republicans in good standing — elected officials, candidates, and nominees (at least on the national level).

Conservative Revolution

In the 1950s, Buckley and other intellectuals fused three strands of ideology into a central, overarching conception of conservatism (the ‘three-legged stool’). These beliefs included commitment to (i) free markets, (ii) traditional morality, and (iii) a combative foreign policy. The conservative movement embraced the fusion of this trinity, which came to represent Republicans’ reigning ideology.

I didn’t mention the word ‘liberal’ in my description of the Democratic Party. While liberal intellectuals are among the party’s constituencies, and many party activists and voters identify as liberal, most Democrats self-identify as moderate or conservative (though the number of self-identified liberals in the Democratic Party has grown in recent years). People regard themselves as Democrats because of social identity, group empathy, and specific issues embraced by the party. Regarding oneself as liberal is not a defining characteristic of Democrats.  

Republicans, in contrast, view politics through an ideological lens: political conflicts reveal a fundamental divide between conservatism and liberalism. And a visceral opposition to liberalism is embedded within conservative ideology.

While it’s possible to describe contemporary conservatism (and the three-legged stool) without appeal to liberalism, doing so would leave something out. Grossmann and Hopkins quote George Nash’s observation (in The Conservative Intellectual Movement in America Since 1945), regarding the fusion of three strands of ideology into one, that the free-market, foreign policy, and traditional morality conservatives were united by their opposition to liberalism:

To the libertarians, modern liberalism was the ideology of the ever-aggrandizing bureaucratic, welfare state. If unchecked, it would become a totalitarian state, destroying individual liberty and private property—the wellsprings of a prosperous society. To the traditionalists, liberalism was a disintegrative philosophy which, like an acid, was eating away at the ethical and institutional foundations of Western civilization, creating a vast spiritual void into which totalitarian false gods would enter. To the Cold War anti-Communists, modern liberalism—rationalistic, relativistic, secular, anti-traditional, quasi-socialist—was by its very nature incapable of vigorously resisting an enemy on its left.

The authors also quote Nicol Rae (The Decline and Fall of Liberal Republicans), who crisply characterizes conservative ideology in these words:

In a crude form, their ideology can be stated as follows: Something is rotten in the American body politic; that rottenness is due to liberalism; and only by returning to the economic, moral, and foreign policy precepts of America’s past can the promise of America be redeemed.

Conservative ideology at its heart begins with an unequivocal aversion to liberalism. This aversion is baked into the conservative movement. Although most Democrats have not embraced liberal ideology, Republicans view the Democrats as liberal standard-bearers. Republicans see political conflict as thoroughly ideological and their critique of Democrats is consistent with that stance.

Democrats have a practical, instrumental view of politics. The focus is not ideological, but pragmatic. But whether or not Democratic voters (and officials) identify as liberal, the Democratic Party looks to government to right wrongs and to offer a helping hand. The Republican view of Democrats as their ideological opponents is accurate insofar as Democrats seek public policy solutions to social problems, while Republicans harbor mistrust of government and oppose expanding its reach.

Having it both ways

Grossmann and Hopkins point to the contradictory views of voters as a reason the United States has settled into a dynamic with a fundamental asymmetry (which they characterize as a “foundational imbalance” and “mismatched nature”) between the two political parties. A majority of Americans can be found to affirm an ideological commitment to traditional American values (and suspicion of government) in agreement with conservative Republicans, while at the same time more than half support an array of specific domestic programs (aka left of center Democratic policies) that offer practical benefits. In other words, most Americans are at once ideologically conservative and operationally liberal. (One version of this inconsistency is to cling to cherished benefits, while casting shade on government, the source of the benefits: “Keep your government hands off my Medicare.”).

Both parties play to their strengths in political battles: Republicans sound abstract conservative themes, such as the virtue of limited government, while Democrats affirm the social identity of their coalition partners and tout an array of specific programs that benefit them.

Because most domestic policy programs are highly popular (especially big, expensive programs), while most voters also embrace conservative rhetorical sentiments (such as demanding limited government), the governing majority can shift back and forth, depending on how voters with these contradictory attitudes lean from one election to the next.  

The asymmetry between the Democratic and Republican parties results in a cascade of practical implications. I’ll explore various consequences in future posts.

(Image: Thomas Nast, Stranger things have happened.)

Off the Rails, Republicans, Short & Sweet ... Short & Sour

Pure spite denies medical care for the rural poor in red states

Quote of the day comparing states that accepted Medicaid expansion and states that refused to do so:

“Expansion cost the states nothing at the start and only a tiny amount past 2020. It was virtually free, and the funding came from taxes these states were paying regardless. There was no reason to refuse Medicaid expansion except for sheer spite toward Barack Obama or else simple hatred of providing services for the poor—or both.” — Kevin Drum

Democracy, Republicans

The Long Game: SCOTUS imperils California’s authority to protect the coast

A 5-4 ruling of the U.S. Supreme Court, in Knick v. Township of Scott, threatens the California Coastal Commission’s ability to oversee land and water use in the coastal zone and to ensure public access to beaches and oceanfront. But not right away. The activist conservative ideologues that form the 5-man Republican majority on the Court – in lockstep with the conservative legal movement – are playing the long game. The four Democratic justices in the minority of the Court’s most significant 5-4 decisions (which will continue inexorably for the foreseeable future), understand the long game, and are responding with increasingly furious dissents as the majority overturns longstanding precedents.

The case at hand is nothing special: a property owner’s dispute regarding a land use decision by a local government.  The decision overturned a 1985 ruling – and decades of previous precedents – that required property owners to seek redress in state courts (when state and local land use decisions were in dispute) rather than in federal court. In Knick v. Township of Scott, the majority ruled that property owners in land use disputes could bypass state courts and proceed immediately to the federal courthouse.

The common law concept of eminent domain is a sovereign power of the state to ‘take’ property – chiefly to purchase land for public use (to build a highway, a city hall, or an aqueduct, for instance). States may also impose averse restrictions on property to protect public interests (such as to ensure sustainable development along California’s coast), a regulatory taking. Takings are pervasive at the federal, state, and local levels – and have existed since before the Constitution was ratified. In the 19th century, the taking of private property was instrumental in construction of transcontinental railroads.  

The law and practice in this area is so well established that the prospects for successfully resisting takings in state courts are severely limited. So the conservative legal movement has focused for decades on capturing the federal courts, in this case with some creative legal theories regarding the Constitution’s Takings Clause.

The Takings Clause (the last lines of the Fifth Amendment) reads in full: “nor shall private property be taken for public use, without just compensation.” The conservative legal movement (including the Federalist Society, which can take the lion’s share of credit in the seating of the five-member ideological conservative majority on the Supreme Court) has pushed since the Reagan era to change Constitutional law so that the property rights of individuals trump the authority of government to interfere with those rights, as the California Coastal Act has done successfully.

David Savage in the Los Angeles Times noted the environmental implications of this ruling for California, which has strict regulations restricting development in cities and on the coast. Based on the Coastal Commission’s considerable influence and the persistent challenges it has faced since its inception, the biggest target of movement conservatives, in my view, is the California Coastal Act of 1976.

In fall 1972, California voters passed Proposition 20, which established the California Coastal Commission. Under Prop 20, the Commission’s authority was to expire in four years; the legislature made the law permanent when it passed the California Coastal Act of 1976. Environmental advocates have found reason to criticize the Commission from time to time. (The Coastal Commission, for instance, approved construction of an estate, featuring five houses, in the mountains overlooking the Pacific for U2 guitarist The Edge, aka David Evans. But Evans lost his latest battle to build with the victory going to the Sierra Club, which opposed the Commission’s approval. In March this ruling was described by the Malibu Times as the “nail in the coffin” for Evans’ plans after a 14-year legal battle. Rest assured, he will appeal to federal court now.)

On the whole, despite the criticism, the Coastal Commission has been extraordinarily successful in protecting the California coast from unsustainable development. (In the Evans’ case, it acted to establish compliance with previous setbacks it had suffered in court.) While its efforts to ensure public access to beaches where very rich people live have been less successful – with court battles dragging on for decades, creating legal stalemates – it has continued its efforts on behalf of the public, often (if not always) winning.

Throughout the past four decades, the Commission’s authority has been under fierce attack by conservatives, who oppose environmental regulations and regard the Commission’s strict environmental rules as draconian. The Act has withstood most significant legal challenges, because it was well crafted to conform to precedent and established law.

That changed with this week’s ruling in favor of Rose Mary Knick, the client of the Pacific Legal Foundation, which has been on a quest to get federal courts to reinterpret the Takings Clause for decades. This ruling is hardly PLF’s first victory at the high court, but it is potentially its most far-reaching victory to date.

This ruling is troubling because if every land use dispute becomes a federal case, with a Supreme Court majority comprised of conservative ideological activists, then the authority of government to enact and enforce environmental regulations will be subject to challenge. The legal basis for environmental protections has suddenly become much less secure. Not only the California Coastal Act, but the Clean Air Act, the Clean Water Act, the Environmental Protection Agency, the Endangered Species Act, and much else are all at risk of being ruled unconstitutionally burdensome – a violation of the Takings Clause.

Last month, in a post about two recent Supreme Court cases, I wrote about the expansive agenda of the aggressively activist conservative SCOTUS majority. The five Republican men comprising the court’s majority have sidestepped textualism and originalism (to which they sometimes pledge allegiance) and rejected the conservative legal principle stare decisis. Rather than reliance on the Constitution, or devotion to legal principle, the majority appears committed to results-oriented jurisprudence—consistent with the Republican Party’s wish list.

In the second case, Franchise Tax Board v. Hyatt (which overturned Nevada v. Hall), Justice Breyer expressed concern, in light of the majority’s disregard of stare decisis, about future rulings of the court:

“It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.”

In Knick v. Township of Scott, Justice Kagan objected in her dissent: ‘Under cover of overruling “only” a single decision, today’s opinion smashes a hundred-plus years of legal rulings to smithereens.’

She referenced Breyer’s dissent in Hyatt:

Just last month, when the Court overturned another longstanding precedent, JUSTICE BREYER penned a dissent…. He wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect…. He concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

Then Kagan concluded, “Well, that didn’t take long. Now one may wonder yet again.”

While I have focused on the consequences for environmental law – and the threat to the California Coastal Commission – the implications of this ruling are far broader.

This reinterpretation of the Takings Clause also threatens workplace-safety regulations, progressive taxation, and employee rights. As I wrote last month, this activist conservative majority may be ushering us into a new Lochner Era, when federal rules and regulations did not impede business or corporations. With the latest 5-4 ruling, the court takes us a step closer to overturning federal authority to ensure that we have clean air and water, safe workplaces, consumer protections, and the right to union representation.

Off the Rails, Republicans

Adam Schiff: Bill Barr is the second most dangerous man in the country

“But I do want to, before we move on from the subject of Barr and contempt, talk about, I think, the most grave concern about Bill Barr. And that is, during his Senate testimony, he opined that the president could have made the Mueller investigation go away any time he wanted because he thought it was unfair. That’s his view of the unitary executive.

Under that view a president is truly above the law. Because what president would not think an investigation against him or her was unfair? It also means that the president can make go away any of the investigations that were farmed out to any of the other elements of the Department of Justice. And, because they are stonewalling us on just about everything, it also means that we might not know – unless whistleblowers step forward – whether Bill Barr is abusing his authority even beyond the fundamental abuse by trying to exonerate the president on obstruction of justice.

And so we find ourselves, I think, for the first time with an attorney general who really is the president’s defense lawyer and spokesperson. And who’s quite good at it. And has the veneer of respectability to camouflage what he’s doing. He is not the sophist that Giuliani is. He’s much more dangerous. And I think he’s the second most dangerous man in the country for that reason.

When you listen to his interviews and you listen to the way he dissembles—when he was asked, even on Fox News, about, well, Didn’t Don McGahn call for Mueller to be fired? His answer was, No, he called for him to be removed, as if that’s a distinction that really makes a difference here. When he was asked, Well, you said that the president fully cooperated, but the president wouldn’t even sit down for an interview. No, no, I said the White House fully cooperated.

When you have an attorney general willing to dissemble that way. When you have an attorney general—and I hesitate to use the word, but there’s no other word that seems to apply here—that lies to Congress as he did when Charlie Christ asked him about whether he was aware of these revelations that had been reported about the Mueller team, and he said that he was not. That’s a very dangerous situation.

And as someone who came out of that department—I spent six years with the Justice department. I venerate the department. To think that it is being led by someone this way—you know, it breaks my heart for the department, but it’s profoundly concerning for the country.” – Congressman Adam Schiff on Attorney General Bill Barr, Council on Foreign Relations, June 4, 2019

Ryan Goodman, at Just Security, provides a side by side comparison of Barr’s and Mueller’s statements about the Special Counsel Report. Goodman comments:

“Whether or not Mueller was intentionally trying to correct the record, the differences between what he and Barr said are, in many cases, stark. Some of the differences involve near complete contradictions—in other words Mueller’s statement and Barr’s statements cannot both be true. Other differences are more a matter of emphasis or tone (e.g., references to the threat posed by the Russian operations, descriptions of the qualities of the special counsel staff).

The special counsel’s Report also contradicts some of Barr’s statements (such as his claim that the Report found no evidence of “collusion,” his suggestion that difficult issues of law and fact stopped the special counsel from concluding the president engaged in criminal obstruction, his claim that the President cooperate fully with the investigation). The following analysis, however, does not include the Report. Instead, it focuses only on Mueller’s public statement and how it compares to statements made by Barr between March 22 (the date that the special counsel handed his final report to the attorney general) and May 29 (the date of Mueller’s statement). This includes statements made by Barr in his 4-page summary submitted to Congress, a formal press briefing, and three congressional hearings, but it does not include Barr’s interviews with Fox News and the Wall Street Journal.”

Off the Rails, Republicans, Short & Sweet ... Short & Sour

Profound ignorance: why Fox News and the conservative media bubble are critical to the GOP

NBC News reported on Congressman Justin Amash’s first town hall meeting back in his district after coming out in favor of the impeachment of Donald Trump: “Cathy Garnaat, a Republican who supported Amash and the president said she was upset about Amash’s position but wanted to hear his reasoning. She said that she will definitely support Trump in 2020 but that Tuesday night was the first time she had heard that the Mueller report didn’t completely exonerate the president.”

“I was surprised to hear there was anything negative in the Mueller report at all about President Trump. I hadn’t heard that before,” she said. “I’ve mainly listened to conservative news and I hadn’t heard anything negative about that report and President Trump has been exonerated.”

Republicans

News flash: Mitch McConnell relishes his role as Darth Vader

Quote of the day, on Senator Majority Leader Mitch McConnell’s calculated strategy of embracing his critics’ view of him as a villain:

“If the GOP leader is seen as the guy on the front lines beating back the left, there’s almost no downside unless he somehow he finds himself in a competitive general election.”

Politico has written a puff piece. From the headline, “Mitch McConnell embraces his dark side”; to the Darth Vader pose in the photograph atop the story (not the photo I’ve used); to the report that McConnell collects and displays political cartoons skewering him, sometimes asks the cartoonists to sign them, and keeps a tally – 562 and running, with 16 just this year; to referencing “his sense of humor in private”; to the spin that “McConnell’s recasting as a cartoon villain of the left is a dramatic transformation.”

The ‘news’ is that virtually everything McConnell says and does is politically calculated (as if this were surprising).

In January I posted a comment after seeing two stories (in WaPo and the LA Times) about McConnell’s strategic moves to protect the Republican members of the Senate. I noted that the Majority Leader was also protecting himself, because he was “as vulnerable to a primary challenge in 2020 as anyone else in the Republican caucus.”

I added, parenthetically: “(And, after increasing levels of chaos in the Trump White House throughout the first two years, beating a Democrat after two more years of who knows what, may not be a sure thing by November 2020 even in Kentucky.)” In McConnell’s calculations (more realistic than my wistful hope) that scenario isn’t half as likely as a Republican primary challenge. That’s why the man “has embraced the demonization” Politico celebrates.

Welcome to the contemporary Republican Party.

Republicans, Short & Sweet ... Short & Sour

Congressman Justin Amash – the exception that proves the rule

Congressman Justin Amash (R-MI) has read and recognized the significance of the Mueller Report. Then he has spoken truthfully about it. Because of the ‘R’ next to his name, this is remarkable: an impressive exception, though it seems unlikely to change much of anything.*

Here are my principal conclusions:

  1. Attorney General Barr has deliberately misrepresented Mueller’s report.

  2. President Trump has engaged in impeachable conduct.

  3. Partisanship has eroded our system of checks and balances.

  4. Few members of Congress have read the report.

*Update: Mitt Romney, the Republican Senator (from a Red state that is not all-in with Trump) who has been most critical of Trump, has weighed in on Amash’s comments:

“My own view is that Justin Amash has reached a different conclusion than I have. I respect him. I think it’s a courageous statement, but …” . . .

“As I read the report, I was troubled by it, was very disappointed for a number of reasons. But it did not suggest to me that it was time to call for impeachment. . . .

… I think a number of things that were done were really, really troubling and unfortunate and distressing. Clearly the number of times that there were items of dishonesty, misleading the American public and the media – those are things that really you would not want to see from the highest office in the land. . . .

I don’t think impeachment is the right way to go.”

(Image from the Congressman’s Twitter page.)

Democracy, Republicans

Reversal of Roe v. Wade is only a sliver of the agenda for the activist SCOTUS majority

It’s not just Roe v. Wade that is threatened by a Supreme Court with two Trump-appointed justices. Two Supreme Court cases in the news this week, and the willingness of the activist majority to abandon conservative judicial principles and impose their vision of the Republican platform on the country, presage devastating rulings ahead for environmental protection, health and safety rules, consumer rights, union-organizing, restraining monopolies, and all manner of regulation that seeks to benefit working- and middle-class folks as opposed to big business. The U.S. hasn’t seen such a conservative and aggressively activist SCOTUS majority since before the New Deal.

CASE #1

“District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.” John Paul Stevens, May 14, 2019

In District of Columbia v. Heller, Antonin Scalia’s 5-4 majority opinion struck down a law banning possession of handguns and requiring other firearms to be stored unloaded or locked. The Court’s decision rejected the clear language of the Constitution (which recognized the right to bear arms to sustain well-regulated state militias); Colonial history, when firearm regulations were in place before adoption of the Constitution; a history of uncontroversial federal restrictions on firearms (including a 1927 ban on mail delivery of handguns and a 1934 law outlawing possession of sawed off shotguns and machine guns); and the unanimous 1975 Supreme Court ruling, United States v. Miller, which deferred to the plain language of the Second Amendment, “In the absence of any evidence that the possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

“One of the greatest pieces of fraud”

Stevens writes:

So well settled was the issue that, speaking on the PBS NewsHour in 1991, the retired Chief Justice Warren Burger described the National Rifle Association’s lobbying in support of an expansive interpretation of the Second Amendment in these terms: “One of the greatest pieces of fraud, I repeat the word fraud, on the American public by special-interest groups that I have ever seen in my lifetime.”

It is critical to see what was going on here: The court majority in the Heller case was intent on embracing not a strict reading of the text, or original intent, or legislative history, or a common sense remedy to an acknowledged social problem; instead, the 5-4 majority adopted a historically anomalous interpretation of the Second Amendment, created and espoused in recent decades by the conservative legal movement and powerful allies of the Republican Party, chiefly the National Rifle Association.

Long story short: NRA hardliners in the ’nineties elevated Wayne LaPierre to run the outfit, embraced survivalists and other fringe groups, and transformed the organization from a sportsman’s group to an advocate for militias that opposed “jack-booted government thugs” (ATF agents) and stockpiled arms in anticipation of a fight against federal tyranny. This mutation proved to be highly profitable for the nonprofit organization (and for LaPierre).

Stare Decisis

For former-Justice Stevens, stare decisis (a Latin phrase meaning ‘to stand by things decided’), which is the legal principle that the judiciary will respect precedent, was sufficient to justify upholding the District’s gun regulations. As SCOTUS decisions in previous decades have affirmed [Payne v. Tennessee], stare decisis is “a foundation stone of the rule of law,” which “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Stare decisis alsoreduces incentives for challenging settled  law, saving parties and courts the expense of endless relitigation.

Stevens concludes his essay with mention of mass shootings – at schools, music venues, churches – that now occur with tragic regularity. The 5-4 Heller majority – in rejecting the conservative legal principle, stare decisis, and imposing a viewpoint embraced by Republican Party special interests, chiefly the NRA – made these shootings inevitable by prohibiting sensible regulation of firearms.

CASE #2

Last Monday, another 5-4 Republican majority rejected stare decisis in Franchise Tax Board of California v. Hyatt, a decision (related to a dispute between California and a former Californian, who now resides in Nevada) that hinged on the issue of state sovereignty. Stephen Breyer’s dissent (on behalf of the four Democratic justices) sounded a warning, which has been widely interpreted as anticipating the majority’s willingness to reverse Roe v. Wade. Leah Litman, writing in the New York Times, sounded a common refrain:

… Hyatt has everything to do with the Supreme Court’s respect for precedent. And respect for precedent is one of the few things, if not the only thing, that stands between the conservative Roberts court and overruling Roe v. Wade. Hyatt made clear that the five conservative justices are perfectly content to overrule a precedent merely because they disagree with it. That should raise alarm bells about Roe, particularly as states enact draconian restrictions on abortion.

I agree with Litman and Breyer: the Roe decision is highly insecure with the five Republican justices that form the court’s majority. Reversing Roe would have cataclysmic effects on women’s reproductive rights in much of the country. For evangelicals and others who would like to put women back in their places (circa the 1950s, the ‘Again’ in Trump’s MAGA), erasing Roe would be a giant step in that direction.

But – without diminishing the repercussions for women – reversing Roe is only the tip of the iceberg.

Because Roe was so fundamentally consequential and, as a major driver of Republican votes, continues to be so consequential, it is often a focus of discussions about the Supreme Court. But with the focus on Roe, there may be a significant failure to appreciate how broad and comprehensive the conservative legal movement’s attack on settled law has become.

California cautionary tale circa 1986

In an illustrative case in 1986, California voters recalled Chief Justice Rose Bird and two associate justices of the State Supreme Court. Voter anger over the death penalty – Bird and company had overturned more than 60 death penalty verdicts, while upholding none – powered the successful campaign. But the campaign was lavishly funded by agribusiness, the banking industry, and other special interests who sought to squelch the most pro-worker, pro-consumer high court in the country. It worked. The court, after the recall, became much more attuned to the interests of business and corporations.

The controversy over abortion has – for decades – been the high profile campaign issue that the death penalty was in California thirty years ago. But now, as then, that’s hardly all that is at stake. The bulk of the GOP donor class is more intent on quashing regulation, lowering tax rates, suppressing worker rights, and keeping consumers at bay, than reversing Roe. They are seeking a compliant federal bench. Right to life vs. right to choose is a more salient issue for most voters, than (for instance) rulemaking and enforcement at the Consumer Financial Protection Bureau, so Roe has been the focus of debate about the courts.

Movement conservatives shun conservative legal principles

In the Hyatt case, like Heller, the 5-4 court majority did not rely on conservative legal principles, or a close reading of the Constitution, to arrive at its decision.

Breyer’s dissent criticizes the majority’s assertion that the Constitution changed, in a basic way, the nature of state immunity. “The most obvious problem with this argument is that no provision of the Constitution gives States absolute immunity in each other’s courts.”  He continues, observing the vague conservative appeals to what is “implicit” in the Constitution, “embedded … within the constitutional design,” and reflected in “the plan of the Convention.” But – Breyer notes – concepts like these are “highly abstract and difficult to apply,” “invite differing interpretations,” and “suffer the additional disadvantage that they do not actually appear anywhere in the Constitution.”

At any rate, I can find nothing in the “plan of the Convention” or elsewhere to suggest that the Constitution converted what had been the customary practice of extending immunity by consent into an absolute federal requirement that no State could withdraw. None of the majority’s arguments indicates that the Constitution accomplished any such transformation.

In other words, there is no convincing path from textualism or originalism – the conservatives’ purported means of interpreting the Constitution – to the conclusions the majority reaches.

Breyer, like Stevens, then presses his argument about stare decisis (a conservative legal principle virtually by definition): unless there is a compelling reason to overturn a decision, then jurists should refrain from doing so. “While reasonable jurists might disagree about whether Hall was correct, that very fact—that Hall is not obviously wrong—shows that today’s majority is obviously wrong to overrule it.”

And Justice Breyer makes clear that his concern is much broader than this single case. It is one thing to reverse a case because it proved to be impractical, legally obsolete, or when changing facts have made it impossible to apply or justify the old rule. But:

It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it. Today’s decision can only cause one to wonder which cases the Court will overrule next.

Constitutional conservatism – divinely inspired traditional culture

In 2014, Ed Kilgore expressed concern at the Republican Party’s “hellish momentum” toward increasingly extreme positions, as ‘establishment’ Republicans adopted the views of the Tea Party. “There’s remarkable near-unanimity in favor of hard-core positions on fiscal matters, the economy, cultural issues, and immigration–and above all a violent resistance to the idea that government can play a positive role in national life other than at the Pentagon.”

And he specifically mentioned the conservative movement’s embrace of “constitutional conservatism.”

… I do worry that the still-emerging ideology of “constitutional conservatism” is something new and dangerous, at least in its growing respectability. It’s always been there in the background, among the Birchers and in the Christian Right, and as an emotional and intellectual force within Movement Conservatism. It basically holds that a governing model of strictly limited (domestic) government that is at the same time devoted to the preservation of “traditional culture” is the only legitimate governing model for this country, now and forever, via the divinely inspired agency of the Founders. That means democratic elections, the will of the majority, the need to take collective action to meet big national challenges, the rights of women and minorities, the empirical data on what works and what doesn’t–all of those considerations and more are so much satanic or “foreign” delusions that can and must be swept aside in the pursuit of a Righteous and Exceptional America. … Some of the moneyed interests bankrolling the GOP and the conservative movement probably just view all the God and Founders talk as a shiny bauble with which to fool the rubes, but others–notably the Kochs–seem to have embraced it as a vehicle for permanent domination of American politics.

A very conservative, aggressively activist Supreme Court

On July 2, 2018 Erwin Chemerinsky, Dean of the UC Berkeley School of Law, in a more scholarly analysis of the Supreme Court (following the 2017-2018 term), focused on the activism of the conservative majority and its fealty to the agenda of the Republican Party:

The just completed Supreme Court term will come to be regarded as the beginning of a new era in constitutional history: a time of a very activist Court that aggressively follows the conservative political agenda. This term was the most conservative since October 1935, when the Supreme Court repeatedly declared unconstitutional key New Deal laws. The 2017–2018 term was a year filled with cases of unusual importance, and the conservative position prevailed in almost every case.

…

What explains the decisions of October term 2017 is not any principle like judicial restraint or originalism, but simply the conservative values of the majority of the justices. The justices were adhering to the vision of the Republican platform. As Justice Kagan expressed in her powerful dissent in Janus v. American Federation, where the Court overruled a 40-year-old precedent and held that non-union members cannot be forced to pay the share of the union dues that support collective bargaining, the Court’s decision was rooted in neither precedent nor sense. The Court ruled for Janus “because it wanted to.”

The dean cites four cases from the Court’s last term decided 5-4 that “reflect a Court following the conservative political agenda, regardless of precedent or the usual conservative desire to adhere to the original understanding of the Constitution.” They are:

  • Janus v. American Federation (overturning a 41-year-old precedent  to end “fair share” contracts, which required employees at union shops, who declined to join the union, to pay a portion of union dues that covered collective-bargaining activities)
  • National Institute of Family and Life Advocates v. Becerra (striking down the California FACT Act, which ensured that religiously-affiliated crisis pregnancy centers, disguised as medical centers, provided women with complete information regarding their options – including access to reproductive health services)
  • Trump v. Hawaii (reversing an appellate court ruling that invalidated Trump’s travel ban)
  • Epic Systems v. Lewis (rejecting employees’ rights to class action suits or class arbitration, contrary to the 1935 National Labor Relations Act, which was upheld by SCOTUS in 1937)

Conservative dreams of a 21st century Lochner Era

For most of our history the Supreme Court has been a powerful conservative – anti-democratic (small ‘d’) – force to suppress change. (The Warren Court of the ’fifities and ’sixties was an anomaly, as was SCOTUS well into the ’seventies, when Roe v. Wade was decided.) During the Lochner Era (which scholars generally agree began by the last decade of the 19th century and ended in 1937), the Supreme Court struck down hundreds of federal, state, and local laws – deemed to interfere with “freedom of contract” /economic liberty /the free market – enacted to protect workers and consumers.

Lochner v. New York (the case that gave the Lochner Era its name) struck down as unconstitutional a labor law that limited bakery workers’ hours to 10 hours a day and 60 hours a week.  During this era, the Court struck down child labor laws, minimum wage laws, bans on “yellow dog” contracts, other laws to assist in union-organizing, and legislation to regulate industry, and – of course – significant New Deal measures introduced by Franklin Delano Roosevelt in his first term as president.

Chemerinsky predicts that the activist justices that form the Court’s majority – “whose jurisprudence is based on the Republican platform” – will vote to overrule:

  • Roe v. Wade,
  • affirmative action, and
  • the exclusionary rule when police violate a suspect’s Constitutional rights.

He mentions the likely suppression of LGBT rights and rejection of equal rights challenges to partisan gerrymandering as well.

Chemerinsky doesn’t venture a prediction about decades of rulings since the New Deal permitting the regulation of business. But a number of libertarian legal scholars and Senator Rand Paul have argued that Lochner v. New York was correctly decided, because it freed business from the regulatory state.  

Liberals may think that the Roberts Court is already too willing to strike down laws and regulations — for instance, overturning campaign finance restrictions and part of Obamacare. But Paul wants the justices to go much further. He sharply criticized Chief Justice John Roberts for failing to overturn the full health law, saying, “Justice Roberts laid down the gauntlet and said judicial restraint means the majority can do whatever they want, basically.”

The immediate future of the Supreme Court – and of U.S. District and Circuit Courts – will more closely resemble the Court of the Lochner Era, than the Warren Court (and several that followed closely behind, when Republican-appointed justices – Stevens, Souter, Powell, O’Connor, and Kennedy – at least occasionally sided with the liberals). The authority of many federal agencies that make and enforce rules – the Environmental  Protection Agency, the Federal Communications Commission, the Federal Trade Commission, the Security and Exchange Commission, the Consumer Financial Protection Bureau, the Federal Election Commission … to list only a handful – may be challenged by an activist Supreme Court majority. We will be living a nightmare for years to come.

(Photo: wikipedia.)