Thursday, February 9, 2017

45's 9th Circuit Reversal - taking stock.

A preface that I am dumb. I have no special wisdom, no legislative experience, am a privileged white guy learning from Twitter, and so my opinion isn't worth much.  But a few thoughts on the evening the Ninth Circuit ruled against Trump's travel ban.

First, by all reports, this EO was rushed out, poorly written, poorly implemented, met by massive public outcry, the resignation of one AG who found it indefensible, called a "ban" by the president & a Muslim ban by his surrogate Rudy Guilliani, and apparently the government court argument boiled down to "we can do whatever we want re: immigration, plus TERRORISM", so it was poorly argued in court.  I'm pleased, but not surprised that the 9th Circuit was unanimous. (I've seen some accounts that actual legal watchers may have expected a 2-1 split, so conventional experts are meeting their normal standards with this administration).  I'm actually a little curious what an 8-justice SCOTUS would rule on this - my personal feeling is that both Kennedy & Roberts are likely to care too much about the status of the court to want to side with 45, especially if they can't actually overrule the decision. And it'd be interesting to see what happens, but probably not all that relevant. I have to imagine that a competent attempt to screw over refugees and other (brown) visitors to the US is not beyond Jeff Sessions & other in the executive branch, would withstand legal scrutiny, and wouldn't be challenged by congress.  A defeat in court really only matters inasmuch as it clarifies whether Trump would go full "the Chief Justice has made his decisions now let him enforce it" a la Jackson, or may provide an indication of what Kennedy & Roberts will do when faced with blatantly terrible executive actions.

But let's go back to that "let him enforce it".  Reports are that in VA & Los Angeles, Department of Homeland Security folks on the ground didn't follow court orders. In LA, Marshals (the enforcement arm of the courts) didn't act to serve required  papers.  Multiple reports have come in of brown and visibly Muslim entrants to the country of many different legal statuses being harassed by DHS agents & receiving questions & demands that are illegal.  Among many other things, the president, and the American people have confirmation that when he oversteps, there are plenty of guys with guns on the ground who will take that as license to harass people they don't like without any repercussions.  And bringing those repercussions via individual lawsuits seems like it'll be really hard.

The legislative branch remains basically dysfunctional, with republicans supporting 45's Cabinet while realizing that there may actually be enough support for the ACA that they can't get rid of it (so they have no idea what to do, since that basically was/is their agenda).

Immigration policy is going to get bad, and lots of families are going to be ripped apart, and lots of places are going to try to be sanctuaries, and there will be legal battles, and direct actions by crowds, and probably brutal beatings and killings by ICE agents empowered to act & unafraid of consequences (see above).

"The Left" has shown that for all our vaunted interest in "facts" and "reasoned opinions", we'll basically swarm on anything that looks funny (and many moves by incoherent webmasters, or typical procedural legislative cases look pretty damn funny).  True story - I went to an organizing meeting and got a sincere and impassioned pitch for tax resistance as a totally not-bonkers idea for how we're going to topple Citizens United and/or reshape government policy.

Predicting the future is a pretty terrible idea in general, but I see a few general trends, sometimes compatible & sometimes at cross-purposes which are probably going to matter in the next while (months? years? I can't imagine this state of affairs holding until 2018).  They're listed below.  Take with big grains of salt.  What I'm *actually* trying to remind myself often is that I don't know what the future holds, and the future is full of change, even if my worst fears about a possible coup or other direct assault on our representative democracy do materialize.

1 - Bannon wants a White Supremacist police state.  Sessions almost certainly does as well, and in general there's probably consensus in the administration for businesses doing whatever they want, white men in charge, and cops maintaining that order.  This particular EO overreached, but as ducks fall in a row, they'll probably keep pushing that way.  The United States is already pretty far along this path, gutting the VRA definitely moved it further that way, and the biggest check against that development has been the Department of Justice and other aggressive federal agencies.  Those ... aren't going to be a check anymore.  Apparently Bannon thinks he has a narrow window to implement this (and he's probably thought about his agenda more than I have), but I'd bet on the country continuing to move in that direction unless something steps in.  Who knows.

2 - Dysfunctional legislature.  A huge reason we have such an imperial presidency now is that the legislature basically doesn't *do* anything.  Theoretically, between the power of the purse, and oversight roles (eventually reaching the possibility of impeachment), an active legislative branch could be an effective check on the presidency.  For the past many years, districts have been gerrymandered enough, and the GOP has had Barack Obama to demonize, so that it was in their interests to just yell and not do anything, either oversight or moving forward an actual agenda for the country, instead letting it slowly crumble (as our roads and bridges have been, visibly).  But now the GOP is in charge.  So far, they've been able to make noises about the ACA while confirming cabinet members, but eventually Ryan's going to want to advance his tax agenda and gut the social safety net.  At which point, at least a few other legislators will have to think about whether they can get re-elected on that agenda.  Meanwhile, the 2020 census looms (and with it, the redrawing of district boundaries), and court cases against gerrymandering are meandering their way up.  Plus there's this energized left trying to follow the Tea Party playbook, except there are clearly more of us, at least right now.  That's almost certainly a recipe for a legislature that's less dysfunctional than it has been (we can't keep holding Benghazi hearings, right?), but I'm not holding out how that the legislature will act in a bipartisan manner either on setting actual policy agendas or doing oversight.  (For the record, I'd be all for dems working with GOP legislators on any bipartisan agenda, if that opportunity presented itself.  I think 45 should be resisted at all costs, but that a functioning legislature that can compromise would be a very good thing).  Given that even the supposedly principled republicans like McCain who occasionally speak against 45 won't actually vote against him, I don't expect a functional legislature anytime soon, though.  (A House doing oversight would almost have to impeach, right? Reason to hope, and also not to expect much).  I dunno.  The state of the national legislature seems like it can't continue forever, but it probably can continue for long enough that Trump can dismantle the government, which is all Bannon needs.

3 - The People.  "La Puebla, Unida, Jamas Sera Vencido".  There have been a bunch of protests.  A bunch of phone calls.  Mass outcries that apparently got temporary gag orders against agencies like the EPA lifted.  The travel ban became a flash point specifically because a bunch of organizers have been doing a lot of work for a while, and channeled a bunch of energy into specific demands and actions.  These are both good public displays that clearly have done *something*, and also actions that have delayed but not yet stopped anything. Also, turning crowds into actionable demands is hard (waves at Occupy Wall Street), keeping people motivated is hard (waves at me, feeling shell shocked & writing this in part to try to stay motivated), and a bunch of states are clearly working on legislation to allow police to use violence to disperse crowds (points back at part 1 about Bannon wanting a police state), which means that *this form* of political protest may not be viable in many parts of the country soon. 
There are clearly obstacles here - actionable demands are hard. Staying interested is hard.  Crowds are probably best directed at local politicians and agenda, but mobilization on national points is in many ways much easier (everyone can pay attention to Indivisible, harder to find that trusted voice in each city or state, and sometimes the people who want to stop global warming and agree that if you were so racist you couldn't get confirmed as a judge you shouldn't be AG aren't really willing to ask for local police accountability, and then you get into "identity politics oh noes!").  But public mobilization is good, keeps people energized, and has been demonstrably effective in many places & times in history.  Also organizers much smarter than me are doing it.  I'm going to listen and participate.

4 - Time.  We're two weeks in.  No legislative agenda has tried to advance yet.  No one has any idea how long these calls can keep coming in, or what SCOTUS will actually do.  There are a lot of decisions that haven't had to be made yet.  As time goes on, some questions (re: executive ethics violations, future of the ACA, SCOTUS rulings, and plenty of others I can't think of), won't be able to be held in abeyance, and their resolution will trigger other things.  This situation is obviously both rapidly changing and unstable.  That can't last forever. 

There's clearly a lot else at play.  We live in a world with other governments.  China & Russia, at least, have the ability to push at our unstable situation.  Clearly a terror attack would move things as well.  Maybe the press is right to flatter itself that "holding the administration accountable" will matter. I think talking about 45's mental health does more to stigmatize mental illness than anything else, but he's unstable/unpredictable and in over his head.  The vaunted "deep state" of intelligence agencies may have cards to play.  I dunno, there's a lot that *could* happen.

What I'd *like* to happen includes -
A legislative branch figuring out how to act in a bipartisan way, and checking imperial overreach. (See bills to stop unilaterally dropping Russian sanctions, maybe even cutting off the authorization to use military force and restrictions on domestic surveillance)
An actual progressive agenda that recognizes the diverse backgrounds of any successful liberal coalition.  I'm of the opinion that this needs to speak to workers, jettison banks and neoliberalism, attack the prison-industrial complex (indeed, attack the ways that the public and private sectors are so easily intertwined that an X-industrial complex can be easily developed), but I'm dumb.  I hope smart people figure something out. I think if we build that, and there are anything like representative elections, the US can be given the chance to become what I was told it was in school.
45 getting impeached, of course, mostly because he's enabling too much awfulness around him.
I'd like people who are learning how to move the levers of national government to stay empowered and keep talking to their representatives.
I'd also like for all of us to figure out a bit more about how to keep track of & move the levers of state government.
Oh, and White Supremacists and neo-Nazis no longer willing to show their faces in public.
And something about letting the EPA, Justice Department, Department of Labor, etc. publish actual facts ,and then people use those actual facts.

Personally, I'm going to try following the federal register, and showing up for some local school board & town council meetings.  Also, I will look back at this in 6 years and laugh, in 6 months and be surprised about the 4 obvious things I never saw coming, in 6 weeks and cry about how only my fears are being born out, and in 6 days mystified that something which seems important here no longer does, and how something that I disregarded ss an apparently huge mover of reality.

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