The View from Right Field

Writing Constitutions – And Judging Those Who Write Them

This week’s Economist has a review of Linda Colley’s new book on the history of written constitutions, The Gun, the Ship and the Pen.  The book covers the writing of constitutions from the middle of the eighteenth century to the present.  According to the review:

“Above all, Ms Colley argues, the need for innovative, written constitutionalism was driven by the evolving nature of war. … Governments’ need for ever-more manpower to fight these wars – and ever-growing tax revenues to pay for them – led to crises at home that could only be tackled by the concession of new rights and promises of wider political participation. … 

A Thought on Using the 25th Amendment to Get Rid of President Trump

If you use the 25th Amendment for a purpose for which it was not intended, even if it is a really good purpose, do not be surprised if you are not happy the next time the 25th Amendment is used for a purpose for which it was not intended.

The Washington 180 – Part Two: Special Counsel

A week and a half ago I wrote about what I called “The Washington 180.”  In that post, I talked about the issuance of nationwide injunctions by federal district courts and how Democrats and Republicans felt about them – and how their opinions might change once Joe Biden is inaugurated.  Democrats who thought it was great when federal district courts issued nationwide injunctions to stop things the Trump administration was trying to do might not like it so much if a federal district court issues a nationwide injunction against something the Biden administration is trying to do.  On the other hand, Republicans who thought it was horrible when nationwide injunctions were issued by federal district courts against Trump administration actions might think it’s great if they are issued against the Biden administration.

Here is another Washington 180 that will be coming: special counsels.  Democrats loved special counsels when Robert Mueller was investigating Russian interference in the 2016 election and Russia-Trump collusion.  Democrats thought special counsels were a necessary check.  They warned Republicans – and President Trump – not to interfere with the Mueller investigation.  Republicans didn’t agree, to say the least.

The Washington 180 – Once Again

With Joe Biden being elected President and the Republicans very possibly keeping a majority in the Senate,¹ we may have another “Washington 180” coming up next year. 

After the Republicans took the House in 2010, Barack Obama couldn’t get Congress to pass his agenda.  When Congress wouldn’t pass the laws he wanted, President Obama turned to what he called his “pen and phone.”²  Sometimes, departments and agencies followed the Administrative Procedure Act and adopted formal regulations.  Other times, they just issued new interpretations of laws or prior regulations.  Or they sent so-called “Dear Colleagues” letters to state and local governments setting out new rules, with an implied threat to cut off federal funding if they didn’t follow the new rules or standards.

Supreme Court or Supreme Election Board?

Three weeks ago, I asked “Will Courts Be Changing Voting Rules Right Up to Election Day?”  Since then, some of the more extreme examples I mentioned in that post have been walked back.  On Monday night, the Supreme Court upheld, by a 5 to 3 vote, a decision by the Seventh Circuit Court of Appeals that overturned a federal district court decision in Wisconsin to extend the period for getting absentee ballots back to the election board until six days after Election Day.  (Wisconsin law provided that absentee ballots had to be received by Election Day.)   

What I wanted to talk about here are a couple of things Justice Elena Kagan said in her dissent in that decision.  Justice Kagan said: “As the COVID pandemic rages, the Court has failed to adequately protect the Nation's voters." and "[T]he Court's decision will disenfranchise large numbers of responsible voters in the midst of hazardous pandemic condition.”

Will Courts Be Changing Voting Rules Right Up to Election Day?

Last Friday, The Wall Street Journal had an editorial listing what I assume are just some of the lawsuits going on across the country to change voting rules for this November.  In some of these lawsuits, judges have extended the date by which ballots that are postmarked as of election day can arrive at the election authority and still be counted.  In others, courts have held that ballots received by some new court-set deadline are to be counted even if they don’t have a postmark.  The deadline for receiving ballots has been extended a few days in some states.  In Michigan, it has been extended until two weeks after the election. 

Which raises the question: Who is supposed to decide the rules for elections these days?  It used to be that legislatures would pass laws setting rules for voting; i.e., when ballots needed to be postmarked; when they had to be received; etc.  But things have changed.  Now it seems like courts are doing the deciding in a lot of states.  The question is: Why?

Donald Trump Bans Evictions. Huh?

While I was getting ready for more important things last week (the Cubs-Cardinals series over the weekend at Wrigley Field¹), the Trump administration issued a nationwide ban on evictions, through the end of the year, of tenants who are unable to pay their rent because of the Covid-19 pandemic.  I’m not going to go into whether a ban on evictions is a good idea or not, assuming it is done by the proper level of government.  I want to talk about the legal basis the Trump Administration is using to justify its action.  Well, I will talk about it as long as I can keep from laughing about it.

In issuing the order, the Center for Disease Control and Prevention

Lawless in Washington – Donald Trump Edition

Back in the day, I wrote a lot about Barack Obama’s overreach in the use of presidential power.  After the election in 2016, I asked “Lawless in Washington – Will There Be a Donald Trump Edition?”  The answer was always going to be yes, and some of President Trump’s actions over the weekend were of a kind with things President Obama did; i.e., lawless.

I’m not exactly sure what President Trump was trying to do with his order about evictions and rental relief.  It sounds like it is mostly just telling federal agencies to see what they can do.  In other words, not much.  Student loan relief was already being done.  This is a little more, I guess, but overall it, too, is not much.

Abraham Lincoln on Our Founders

The new view of the United States, as seen in The New York Times’ “1619 Project,” is that United States history rests on slavery and white supremacy and that “[o]ur democracy’s founding ideas were false when they were written.”  I disagree.  I do not think our Founders were liars and hypocrites when they wrote the Declaration of Independence and the Constitution.  I think they were in a position where they had to compromise with a terrible evil or give up their hopes for a new country built on a new set of principles.  What they did, therefore, was to compromise, but to do it in a way that kept those ideals alive for the future.

It is easy, looking back at people in history, to judge them on today’s principles.  What at the time were principled positions now look, to some, like racism, sexism, prejudice – and worse.  I’m not going to argue that point here, though I wonder how our views will look to people a hundred or more years from now.

Little Sisters of the Poor and Free Birth Control

There was considerable outcry earlier this week when the Supreme Court upheld Trump administration regulations under Obamacare that provided the Little Sisters of the Poor, and other religious groups, did not have to provide free contraceptive services under their health plan.  Well, actually, it was more complicated than that.  The Obama administration had not required the Little Sisters to provide free contraceptive services; it required the Little Sisters’ health plan to provide free contraceptive services, without charging the Little Sisters for the services.¹  The problem for the Little Sisters was, as I understand it, that they did not feel comfortable with what they had to do in order to opt-out of providing free birth control.² 

Apparently, 70,000 or more women could be left without free birth control under the Trump administration regulation, which bothers (outrages) a lot of people.  But the point is, which a lot of people seem to miss, is there is a simple way to make sure free contraceptive services are provided to all women without forcing groups like the Little Sisters to violate their religious principles: Have the federal government pay for it.  If free birth control is that important, just pass a law and provide for it.  Nobody’s religious principles are violated,³ and women get free birth control.