Trump’s Day One and the Constitution

When you say the quiet part out loud.

No, Curmie didn’t watch a moment of the inauguration live, but he does have access to the interwebs, knows how to read, and (with his glasses on) has quite good vision. 

Curmie thinks that virtually everything in Trump’s agenda is stupid, but not necessarily objectively stupid.  Some parts are at least defensible, i.e., their wisdom or lack of it is a matter of opinion.  Withdrawing from the World Health Organization is one such instance.  Others are just showboating, e.g., “officially” re-naming Denali and the Gulf of Mexico.  This is the kind of bullshit that plays well with the faux patriot MAGAs, at least with those that haven’t yet figured out that the incoming plutocracy cares literally nothing about them.

But on to constitutionality…  There is not, and should not be, any requirement that anyone in this country should have to place a hand on a Bible (or any other book… anyone else having a “Fried Green Tomatoes” moment?) to declare an oath.  The fact that Trump didn’t do so is perfectly legal and does not in any way render the oath less binding (as if the Grifter-in-Chief has the slightest interest in upholding any vow).  It does highlight the phoniness of his pseudo-Christianity, but anyone paying the slightest bit of attention knew long ago that he’s less of a Christian than Curmie, who just listed himself as agnostic on a juror information form.

Mr. Trump is also legally free to pardon whomever he likes.  The Constitution grants far too much power to the President in this regard, but one suspects that the founders couldn’t have imagined that the office would ever be held by so reprehensible a figure.  And, to be fair, President Biden’s wholesale pardons and commutations, including pre-emptive pardons for family members, provides a lot of cover for whatever 47 wants to do.

The President can also create new government offices, like the Department of Government Efficiency.  (True, there are at least three lawsuits already filed against DOGE, but Curmie isn’t optimistic about their chances.)  Yes, the department was created for the primary purpose of siphoning money out of Medicare and Social Security and into tax cuts for billionaires.  No, it’s not a coincidence that despite the presumed need to lower expenditures we’re now talking about planting the American flag on Mars.  Guess what head of DOGE stands to make billions from government contracts to provide the capability to accomplish that largely frivolous goal?  Hey, you got it in one, Gentle Reader!  Well done!

Speaking of the only person in the country more dangerous than Donald Trump, how about that Nazi salute!?!  Let’s be real.  That’s what it was; no one does that accidentally, certainly not twice.  It was purely intentional, a gesture of arrogance by an asshole fully aware that there’s nothing we mere mortals can do about it.  His response was, of course, to blame people who said he was acting like a Nazi just because he was acting like a Nazi.  Trump won’t dump him for stuff like this, only possibly down the road for upstaging Dear Leader Himself.  Musk’s defenders can say all they want about a “Roman salute,” but they’re not fooling anyone with an IQ above room temperature. 

But here’s the thing, Gentle Reader.  This column is about the constitutionality of events, not their advisability.  This isn’t Germany, where that gesture would have had Mr. Musk led away in handcuffs.  We, all of us, including amoral mediocrities with literally no public-spiritedness, are protected by the 1st Amendment.  He’s got a legal right to make that gesture… and we’ve got a legal right (and an ethical responsibility) to recognize it for what it was, and to say so out loud.

Finally, we come to the one absolutely, no doubt about it, unconstitutional moment.  That would be, of course, to deny birthright citizenship.  The 14th Amendment couldn’t be more explicit: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….”  Trump wants to quibble about “subject to the jurisdiction thereof.”  He has literally no case, despite his claims to the contrary.  This is just another example of the Manchurian Cantaloupe throwing a little red meat to the MAGA crowd by playing on their prejudices… so they won’t notice how quickly and how thoroughly he’s screwing them in other ways.

And, Trump being Trump, he feels compelled to lie about it: “It’s ridiculous, we’re the only country in the world that does this with birthright, as you know, and it’s just absolutely ridiculous.”  The Hill’s Sarah Fortinsky notes that some 32 other countries, including Canada, Mexico, and 27 of the 32 nations in the Caribbean, Central and South America, have unrestricted birthright citizenship.  News flash: Trump is a lying buffoon.

Curmie is willing to listen to an argument that the Constitution ought not to say what it clearly says.  Illegal immigration is indeed a problem, and there’s some substance to the whole “anchor baby” argument.  Just as conservatives struggle to find a reason to oppose responsible gun control legislation other than the 2nd Amendment, liberals have the same problem with birthright citizenship.  But the 14th is even more explicit than the 2nd (remember that pesky “well-regulated militia” phrase?), and it is sufficient to prevent any “executive order” from taking precedence.

No, Curmie doesn’t much care for the current makeup of SCOTUS, and he wouldn’t trust a couple of them to admit that night tends to be darker than day if the First Felon said otherwise.  But the majority, even the ones Curmie disagrees with most of the time, are at least smart enough to realize that acceding to this particular Trumpian tantrum would destroy the few feeble strands of respect SCOTUS still retains. 

And that, Gentle Reader, is about the best we can hope for over the next four years.

We Won't Get Fooled Again... except this time

That the US Senate would pass a bill I consider an abomination is not really that shocking. But that my allies would be the likes of Rand Paul, Jim DeMint, and Tom Coburn, or that my opposition would include Amy Klobuchar, Sherrod Brown, and Patrick Leahy… that is seriously weird. Of course, I’m also on the same side as Al Franken, Tom Harkin, and Bernie Sanders, and opposed by Jon Kyl, Marco Rubio and Mitch McConnell… and now everything makes sense again. Sort of.

I’m talking, of course, about the National Defense Authorization Act for Fiscal Year 2012, with its controversial provision which allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay. When this frankly scandalous piece of legislation got the White House imprimatur yesterday—President Obama had been threatening to veto it, but now says he’ll sign it tomorrow—I linked to this article and wrote on the Curmudgeon Central Facebook page, “WHAT??? Is there really a difference between being actively evil and merely capitulating to evil at every opportunity?”

That was unfair. I apologize to the legitimately craven, those who would like to stand up to the Dark Side, but just can’t muster the gumption to do so. On this issue, at least, they have nothing in common with Barack Obama, who is indeed actively evil… or, at the very least, whose vaunted knowledge of constitutional law seems to have a blind spot on that whole habeus corpus thing that has only been the hallmark of English and subsequently American jurisprudence since the 13th century. (I mean, really, you can’t expect the poor lad to keep up with all the new developments, right?)

Okay, before we go any further, it’s time to reiterate that I’m neither a lawyer nor a constitutional scholar, and to concede that we’re not really talking about habeus corpus, per se, but rather a first cousin of it. Habeus corpus, after all, is a means of securing the release of those illegally detained. This bill provides a means by which an obviously unethical and unconstitutional practice that runs counter to centuries’ worth of legal precedent is rendered “legal.”

My mistake was in believing, perhaps more on faith than on evidence, that the President’s early objections to this legislation were based on civil libertarian concerns. They weren’t. They were, apparently, all about turf wars, making sure that it was the President and not (gasp!) Congress who had the prerogative to violate the civil rights of American citizens. Glenn Greenwald’s piece on Salon.com is more comprehensive than I could be, and includes valuable links to statements by the likes of the ACLU and Human Rights Watch. Here’s a little of HRW executive director Kenneth Roth’s commentary:

By signing this defense spending bill, President Obama will go down in history as the president who enshrined indefinite detention without trial in US law. In the past, Obama has lauded the importance of being on the right side of history, but today he is definitely on the wrong side….

It is a sad moment when a president who has prided himself on his knowledge of and belief in constitutional principles succumbs to the politics of the moment to sign a bill that poses so great a threat to basic constitutional rights….

President Obama cannot even justify this serious threat to basic rights on the basis of security. The law replaces an effective system of civilian-court prosecutions with a system that has generated the kind of global outrage that would delight recruiters of terrorists.

It’s not often that I quote Rand Paul with approbation, but I can’t find anything to argue with here:

… detaining citizens without a court trial is not American… [if the law passes] the terrorists have won.

We're talking about American citizens who can be taken from the United States and sent to a camp at Guantánamo Bay and held indefinitely. It puts every single citizen American at risk. Really, what security does this indefinite detention of Americans give us? The first and flawed premise, both here and in the badly named Patriot Act, is that our pre-9/11 police powers were insufficient to stop terrorism. This is simply not borne out by the facts.

Of course, there’s also Mark Kirk:

We as Americans have a right to a speedy trial, not indefinite detention. We as Americans have a right to a jury of our peers, which I would argue is ... not enlisted or military personnel sitting in a jury. You cannot search our businesses or place of business or our homes without probable cause under the Bill of Rights. You cannot be deprived of your freedom or your property without due process of law, and that, I would say, is not indefinite detention. I would actually argue that no statute and no Senate and no House can take these rights away from you.

And yes, having essentially articulated the manifold reasons this legislation is unconstitutional, misrepresented and downright scary, Senator Kirk proceeded to vote for it, anyway.

Kirk wasn’t alone. Here’s Dianne Feinstein: “Congress is essentially authorising the indefinite imprisonment of American citizens, without charge. We are not a nation that locks up its citizens without charge.” Then she voted for the bill, too.

OK, could we have one big chorus of “W.T.F.”?

Supporters of this bill claim that it merely codifies existing practice (in which case, why do we need it?), and doesn’t extend the tentacles of governmental power. There may, unfortunately, be some truth to this allegation (if so, I assure you that it’s purely coincidental). The notion of constitutional rights became distorted beyond recognition in the immediate aftermath of 9/11, with the desperate passage of the PATRIOT Act, which managed somehow to be frighteningly repressive and downright silly at the same time. Similar, and further, invasions of personal privacy became central to the legacy of a power-hungry President named Dick Cheney George W. Bush.

Those of us who voted for Mr. Obama in part because of Mr. Bush’s cynical and indeed Machiavellian assertions of executive power to do essentially whatever the hell the President wants have been, are, to say the least, bitterly disappointed. The Obama administration has extended chronologically and in some cases substantively about every Bush-Cheney over-reach. Rep. Jerry Nadler sums this up nicely in his response to the assertion that this bill doesn’t really make substantive changes to civil liberties:

It doesn't codify existing law. It codifies claims of power by the last two administrations that have not been confirmed by [the Supreme Court]—rather terrifying claims of power, claims of the right to put Americans in jail indefinitely without a trial, even in the United States.

Nadler makes an important distinction: what is existing law and what a pair of megalomanical administrations claim it to be are hardly interchangeable concepts.

Tellingly, if Obama had any real principles, he could have asserted them on this issue. In political terms, there was an opportunity here: some 40 Republicans in the House voted against this bill, and another half-dozen in the Senate joined them. On one of the few occasions GOP legislators haven’t been in lock-step, the Obama administration characteristically fumbled the ball. But, as noted above (and with striking clarity by Greenwald), no one in the executive branch seems to have had the slightest inclination to follow the path of civil liberties… not when there is power to be consolidated, at any rate.

Ultimately, it all boils down to the lyrics of the great Who song, “Won’t Get Fooled Again.” Three years ago, we were all thinking, “Change it had to come. We knew it all along.” Trouble is, the more salient part of the song comes later: “Meet the New Boss. Same as the old boss.” Don’t you hate it when Pete Townshend is right?