New Meanings

By Tom Lamia

AN ELDERLY COUPLE, SUSAN AND TOM LAMIA (ABOVE) DOING THEIR PART in small town Maine. Photo courtesy of Susan and Tom Lamia.

Those unschooled in history and civics are now using catchwords and phrases that, like Bill Maher’s New Rules, create new meanings for old expressions. “Pro bono” no longer describes a lawyer’s time devoted without fee to a worthy cause; it now means free legal work given in the political or commercial interest of the president. “Anti-Semitism” has been stretched so far as to become a wolf in sheep’s clothing, empowering efforts to control activities and speech unrelated to ethnic or religious hostility. “Conservative,” once a core Republican economic principle, has become code for opposition to cultural change. A solemn oath to support and defend the Constitution of the United States now includes, “sotto voce,” an escape clause for the unacceptable. The “rule of law” and “the American People” are handy presidential references to law enforcement and political supporters, nothing more. A president who may believe that the Supreme Court has granted him something approaching sovereign immunity may test the outer limits of that grant.

When an election gives control of all three branches of the government to a cabal that defers to a person rather than a party for leadership, our constitutional system is being moved off its foundations. The Constitution’s design is that of dynamic tension among its three branches. It requires institutions with separate and equal authority operating under rules for discussion and conflict resolution. If the system freezes up through willful secession or disavowal of constitutional limits, confidence is lost, and the government breaks up. Our history tells us what happens in the case of secession. Our current situation threatens a lesson in the case of disavowal of constitutional limits. A system failure is a justifiable concern, but it has not yet happened, and it is not inevitable.

Our constitutional system and its prescription for a rule of law is raising fears for which the Constitution provides no sure remedy. This moment has come by a circuitous and often contentious route. Opportunities for resolution have been missed or finessed into navigable channels that avoided irresolution.

On occasion Congress deferred to the executive branch to achieve policy goals through executive orders alone. That route was opened beyond all previous limits by the Trump administration when they took power in January, prompting a barrage of lawsuits by injured parties seeking court protection. Being constrained to honor the rule of law, the courts are being severely tested. This president is impatient to have his policy goals put into immediate effect and asserts a power to act without Congress, citing a president’s obligation under Article II, Section 3 of the Constitution to “take Care that the Laws be faithfully executed.” There is no Supreme Court precedent for this claim.

The result is deep voter frustration with all three branches of government. The president and his team are on the brink of refusing to follow court orders. The courts are showing impatience with government lawyers’ factual knowledge. Beneath it all there is a hint of the Trump style of litigation, practiced in his history of civil and criminal cases: delay, misdirect, perform, challenge, escalate, attack, obfuscate, appeal and wait for events to yield an escape opportunity.

While the executive branch is impatient to get its radical agenda in place — a goal that has popular support in several areas (immigration, cultural norms, elite bashing, reindustrialization) — there is often a mismatch on the issue of whose ox is being gored.Immigrants are highly productive workers at every level from field hand to corporate management. It is hard to fashion an immigration policy that cruelly punishes border crashers without leaving gaps in the economy as essential workers are targeted, leaving openings in executive suites as well as at the local meat packing plant.

A consistent message coming from the courts that have ruled so far on executive order enforcement actions is that presidential authority has limits. Article I, Section 1 of the Constitution grants all legislative power to the Congress. Through legislation Congress can and has transferred bits of its power to the executive. Not all, just enough to finesse its way through crises. The Constitution’s Bill of Rights (the first ten amendments) provides primary protections for the people against their government. Among them are: freedom of speech, assembly, press, and religion (First); no unreasonable searches, seizures and warrantless arrests (Fourth); no double jeopardy, no self-incrimination, due process (Fifth); speedy, public jury trial, with counsel (Sixth); binding jury trial in civil cases (Seventh); no excessive bail or fines, or cruel and unusual punishment (Eighth); rights not mentioned retained by the people (Ninth); powers not granted to the US, nor prohibited to the States are reserved to the States respectively, or to the people (Tenth). These rights cannot be taken from the people by any act of government. They apply in every court, every public meeting, every act of law enforcement, every election, speech, publication or public gathering. But, you must claim them and hold those who would deny them to account.

The Constitution has not been damaged beyond repair. The judiciary is preserving its independence. Congress may yet find the courage and resources to withstand being pre-empted by the executive’s power. The Citizen’s United decision took away Congress’s power to regulate money in politics and that was a debilitating blow to the electoral process. That decision released an avalanche of unaccountable funding that has inflated executive power and weakened Congress. It opened government up to corruption and accelerated the flow of money to those with the power to influence outcomes. It will take a new generation of Americans capable of emulating the founders to rebalance the scales.