berg80
Diamond Member
- Oct 28, 2017
- 25,169
- 21,174
- 2,320
As it turned out, the system of guardrails guiding the behavior of a rogue prez were completely inadequate to hold him in check.
Repairing the Rule of Law: An Agenda for Post-Trump Reform
As the U.S. begins to see the light at the end of the Trumpian tunnel, it is time to begin thinking about the issue of repair. One should not assume the result of the election, but it is nonetheless worth asking the question: What should be done in a post-Trump world to restore the rule of law?
Of Trump’s many excesses, his assault on legal norms has to rank high in terms of damage to fundamental values that form the fabric of America. His attacks on the free press, the independent judiciary and the independence of the Department of Justice have all created significant damage. His abuse of executive discretionary authority has made a mockery of the concept of checks and balances. His gaming of the judicial system has revealed weaknesses in our legal process. His attempts to place himself (and his family and his business interests) above the law have called into question foundational national conceptions of equal justice. In short, President Trump has led a wrecking crew (aided and abetted by William Barr and Mitch McConnell) that has severely damaged American legal norms of behavior.
Trump’s attacks on foundational norms and principles leave policymakers with two choices. Lawmakers and voters can accept that damage and admit the inevitability of American decline, or they can fight to restore and strengthen the country’s legal guardrails. This post is an effort to begin that fight—to identify practical steps that the country can take to reinvigorate the rule of law and the concept of checks and balances.
Repairing the Rule of Law: An Agenda for Post-Trump Reform
Precious little has been done regarding the agenda for reform. A fractious Congress and the energy draining endeavor of bringing Individual 1 to justice has taken care of that.
Now we face another instance of previously unheard of behavior challenging the country's ability, and will, to do something about it.
Dear Chief Justice Roberts:
We write regarding recent New York Times reports that an upside-down American flag was displayed in Justice Samuel Alito’s yard in January 2021 and another flag associated with the January 6th attack on the Capitol was flown at another of Justice Alito’s residences in the summer of 2023.1 For the following reasons, we urge you to immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6th attack on the Capitol, including the question of former President Trump’s immunity from prosecution for his role in the events of January 6th in Trump v. United States. We also renew our call for the Supreme Court to adopt an enforceable code of conduct for justices. And we request a meeting with you as soon as possible, in your capacity as Chief Justice and as presiding officer of the Judicial Conference of the United States, to discuss additional steps to address the Supreme Court’s ethics crisis.
https://fingfx.thomsonreuters.com/gfx/legaldocs/znvnxeqkyvl/2024-05-23-Letter-to-CJ-Roberts.pdf
It goes without saying Sam has disqualified himself from ruling on cases involving Trump's efforts to steal the 2020 election by overtly violating the cherished concept of the appearance of impartiality. A standard calling for justices to recuse themselves when they clearly are not impartial.
But will he voluntarily do so? No. Will Chief Justice Roberts insist that he do so to preserve what little integrity the Court has left? No. Are there any mechanisms by which he can be forced to recuse himself? No.
At times in the history of the country there has been a need to adjust the balance of power between the three branches of government. Lincoln assumed powers not constitutionally assigned to him during the crisis of the Civil War. FDR similarly tried to assume extra-constitutional powers due to the dual crises of the depression and WWII. The ethical scandals involving Ginni's husband brought to light the feckless lack of authority any entity has to police corrupt behavior by SC justices when they choose not to police themselves. That needs to change.
Alito's brash, incontrovertible support for the Jan. 6 insurrection by literal flag waving is the result of him feeling, with good reason, he can do such things without consequence. It's one thing for him to hold Trump's insipid MAGA motto in his heart and quite another for him to metaphorically appear in public with a MAGA hat on his head.
Back in 2012 (before the age of Trump), I thought this grant of emergency authority was a wise decision, writing that “any President of either party should not be presumed to exercise powers granted in a dictatorial way.” And in the run-up to Trump’s election, I wondered if we could extend the same presumption to a putative President Trump.
Today, the answer to that question seems obvious. The fundamental norm to presume a lack of malevolent intent is now in doubt. And that, in turn, means that the entire postwar architecture of federal power—congressional legislation backed by executive discretion—is also in doubt.
Repairing the Rule of Law: An Agenda for Post-Trump Reform
As the U.S. begins to see the light at the end of the Trumpian tunnel, it is time to begin thinking about the issue of repair. One should not assume the result of the election, but it is nonetheless worth asking the question: What should be done in a post-Trump world to restore the rule of law?
Of Trump’s many excesses, his assault on legal norms has to rank high in terms of damage to fundamental values that form the fabric of America. His attacks on the free press, the independent judiciary and the independence of the Department of Justice have all created significant damage. His abuse of executive discretionary authority has made a mockery of the concept of checks and balances. His gaming of the judicial system has revealed weaknesses in our legal process. His attempts to place himself (and his family and his business interests) above the law have called into question foundational national conceptions of equal justice. In short, President Trump has led a wrecking crew (aided and abetted by William Barr and Mitch McConnell) that has severely damaged American legal norms of behavior.
Trump’s attacks on foundational norms and principles leave policymakers with two choices. Lawmakers and voters can accept that damage and admit the inevitability of American decline, or they can fight to restore and strengthen the country’s legal guardrails. This post is an effort to begin that fight—to identify practical steps that the country can take to reinvigorate the rule of law and the concept of checks and balances.
Repairing the Rule of Law: An Agenda for Post-Trump Reform
Precious little has been done regarding the agenda for reform. A fractious Congress and the energy draining endeavor of bringing Individual 1 to justice has taken care of that.
Now we face another instance of previously unheard of behavior challenging the country's ability, and will, to do something about it.
Dear Chief Justice Roberts:
We write regarding recent New York Times reports that an upside-down American flag was displayed in Justice Samuel Alito’s yard in January 2021 and another flag associated with the January 6th attack on the Capitol was flown at another of Justice Alito’s residences in the summer of 2023.1 For the following reasons, we urge you to immediately take appropriate steps to ensure that Justice Alito will recuse himself in any cases related to the 2020 presidential election and January 6th attack on the Capitol, including the question of former President Trump’s immunity from prosecution for his role in the events of January 6th in Trump v. United States. We also renew our call for the Supreme Court to adopt an enforceable code of conduct for justices. And we request a meeting with you as soon as possible, in your capacity as Chief Justice and as presiding officer of the Judicial Conference of the United States, to discuss additional steps to address the Supreme Court’s ethics crisis.
https://fingfx.thomsonreuters.com/gfx/legaldocs/znvnxeqkyvl/2024-05-23-Letter-to-CJ-Roberts.pdf
It goes without saying Sam has disqualified himself from ruling on cases involving Trump's efforts to steal the 2020 election by overtly violating the cherished concept of the appearance of impartiality. A standard calling for justices to recuse themselves when they clearly are not impartial.
But will he voluntarily do so? No. Will Chief Justice Roberts insist that he do so to preserve what little integrity the Court has left? No. Are there any mechanisms by which he can be forced to recuse himself? No.
At times in the history of the country there has been a need to adjust the balance of power between the three branches of government. Lincoln assumed powers not constitutionally assigned to him during the crisis of the Civil War. FDR similarly tried to assume extra-constitutional powers due to the dual crises of the depression and WWII. The ethical scandals involving Ginni's husband brought to light the feckless lack of authority any entity has to police corrupt behavior by SC justices when they choose not to police themselves. That needs to change.
Alito's brash, incontrovertible support for the Jan. 6 insurrection by literal flag waving is the result of him feeling, with good reason, he can do such things without consequence. It's one thing for him to hold Trump's insipid MAGA motto in his heart and quite another for him to metaphorically appear in public with a MAGA hat on his head.
Back in 2012 (before the age of Trump), I thought this grant of emergency authority was a wise decision, writing that “any President of either party should not be presumed to exercise powers granted in a dictatorial way.” And in the run-up to Trump’s election, I wondered if we could extend the same presumption to a putative President Trump.
Today, the answer to that question seems obvious. The fundamental norm to presume a lack of malevolent intent is now in doubt. And that, in turn, means that the entire postwar architecture of federal power—congressional legislation backed by executive discretion—is also in doubt.
