Trump’s Violations of Federalism Would Make Obama Jealous – George F Will

Opinions: Trump’s Violations of Federalism Would Make Obama Jealous

George F Will | The Washington Post

  • “But what good came of it at last?”
  • Quoth little Peterkin.
  • “Why that I cannot tell,” said he,
  • “But ’twas a famous victory.”

— Robert Southey  | “The Battle of Blenheim” (1798)

Southey, a pacifist, wrote his antiwar poem long after the 1704 battle for which the Duke of Marlborough was awarded Blenheim Palace, where his great-great-great-great-great-great-grandson Winston Churchill would be born. We, however, do not need to wait 94 years to doubt whether the Trump administration’s action against “sanctuary cities” is much ado about not much.Four months have sufficed to reveal ’twas a constitutionally dubious gesture.      

The executive order was perpetrated in a helter-skelter, harum-scarum, slapdash manner five days after the inauguration, before the administration was humming like a well-tuned Lamborghini. The order says that sanctuary cities have caused “immeasurable harm” to “the very fabric of our republic,” a thunderous judgment offered without evidence of the shredded fabric or even a definition of “sanctuary city.”

They are cities that limit the cooperation of local law-enforcement personnel with federal immigration enforcement efforts. There are defensible reasons for some non-cooperation: e.g., preserving cooperative relations between local police and immigrant communities, which facilitates crime-fighting. But many such cities anoint themselves sanctuaries as an act of self-congratulatory virtue-signaling and to pander to immigrant communities.

The executive order is either a superfluous nullity or it is constitutional vandalism. It says cities “that fail to comply with applicable federal law” shall “not receive federal funds, except as mandated by law.” A U.S. district judge in Northern California has held that the executive order is “toothless” if it pertains to merely a few federal grants, and even they do not unambiguously state in their texts that funding is conditional on active cooperation with federal immigration enforcement. If, however, the order extends to other federal grants, it violates the separation of powers: The spending power is vested in Congress, so presidents cannot unilaterally insert new conditions on funding.

Several senior White House officials, operating in pre-Lamborghini mode, denounced this judge’s decision as another excess by the much-reversed U.S. Court of Appeals for the 9th Circuit. Actually, although this court might hear an appeal of the judge’s decision, it had nothing to do with the decision.

It is federal law that a state “may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” This does not, however, prevent any government entity from voluntarily withholding information.

Furthermore, the Supreme Court has held that the 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”) means that the federal government may not “commandeer” state and local officials to enforce federal laws. The function of the anti-commandeering doctrine is, in the words of Justice Antonin Scalia, the “preservation of the states as independent and autonomous political entities.”

Last Sunday, Texas Gov. Greg Abbott (R) signed legislation setting criminal and civil penalties for state and local officials who refuse to comply with federal immigration laws and detention requests. As policy, this may or may not be wise; as an exercise of the state’s police power, it is not constitutionally problematic. But regarding the federal executive order, professor Ilya Somin of George Mason University’s Antonin Scalia Law School says:

“Trump’s order is exactly the kind of high-handed federal coercion of states and undermining of separation of powers that outraged conservatives under [President Barack] Obama. In fact, Obama did not go as far as Trump seems to do here. Obama never claimed sweeping authority to impose new conditions on federal grants beyond those specifically imposed by Congress.”

Neither the Trump administration’s semi-demi-ukase against sanctuary cities, nor the judge’s ruling against it, has significant discernible consequences. The executive order illustrates the descent of American governance into theatricality.

In the satirical British television series “Yes, Prime Minister,” a politician exclaims: “Something must be done, this is something, therefore we must do it.” The executive order is barely anything at all, beyond, in the words of the Cato Institute’s Ilya Shapiro, “just one more episode of Trumpian signaling.” It is government inspired by “Animal House,” in which movie the character Otter says: “I think this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!”

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  • Clyde Duncan  On May 13, 2017 at 10:08 am

    So, the Russian Foreign Minister Sergei Lavrov’s personal photographer also worked for the state-owned Tass news agency.

    Nobody checked the background of the personal photographer, or his equipment – he could have had secret recorders documenting everything, while excluding USA media.

    – Daily Kos

    Now Tass has the meeting all over the Russian media – the White House states “We’ve been Trumped!”

    Anyone note the fascinating fact that Trump’s communications team (and I would assume this means particularly Sean Spicer) was never clued in about the plan to fire Comey?

    This just further reinforces the fact that Trump’s continued reliance on his own ego, gut and instincts to make decisions, and his very thin and skimpy close circle of largely fawning advisors (Priebus, Jared Kushner, Roger Stone, Steve Bannon — who either give in to his instincts without pushback or fully agree with them) leaves him totally exposed when he lurches forward suddenly with some ill-advised move like the Comey firing. In so doing, he undercuts any credibility his communication team might have had.

    Nobody, it seems, had any sense of just how Comey’s dismissal was going to look when Comey was heading the department best positioned to dig into what Trump and the Russians were up to.

    The bottom line: When you view the entire universe as “us vs. them”, you don’t make good decisions.

    • This has been especially apparent in the administration’s process for selecting nominees to fill vacancies. The very first criteria for ANY such selection is whether an individual EVER said anything critical about Trump. That kind of limit a priori produces a cadre of zealous toadies, none of whom will ever tell their President anything he doesn’t want to hear but needs to.

    • Sally Yates didn’t go to the press with her concerns about Flynn or even leak information….she went straight to Trump’s White House Counsel and warned him that the administration faced real risks from what Flynn was doing.

    And she did it in two meetings and a phone call. Nothing happened and sources now indicate that their reasoning was that Yates was “one of them,”…..someone from the other side, an enemy and therefore her warnings were baseless and unheeded. But her warnings were proved very true.

    • Apparently, one of the leaders of the drive to get rid of Comey was Roger Stone, whose own track record for ethics and commitment to democracy rivals that of Joseph Goebbels. He was pushing Trump to get rid of Comey. “us vs. them”….and Trump bit and the result is a firestorm of opposition and increased pressure to name a special prosecutor.

    If you stop to think about it, as bad as all of this is, we have to thank our lucky stars that Trump and the team around him are stupendously clueless, stupid and intensely partisan. They view everything and everyone through a lens of “us vs. them.”

    Obama over eight years clearly demonstrated his understanding that you have to try and find common ground to get things done. McConnell and Ryan and their followers had increasingly blocked any attempts to achieve that goal. And now they, their party, and their leadership…..totally in control of Congress and the White House are steadily imploding.

    Their “agenda” such as it is, is in tatters, they are embattled, they are defensive and they are being exposed as hyper-partisan, hypocritical, totally focused on economic self interest and without a real agenda or any ethics.

    Every day they continue to circle the wagons around a leader whose public support is heading towards 30%, is another day closer to November, 2018 and the mid-terms when they will have to face the music. We can only hope they keep it up as long as possible.

    – “us vs. them”…..may work great in Moscow…..not so much in D.C.

    You know, the President has access to an entire State Department, CIA, etc. filled with people who are experts on Russia, know the language, know the history, etc. All shut out of the process because the orange man is just so-o-o-o-o much smarter.

    But even stupid, clueless people can do a lot of damage, especially when they are supported by EQUALLY stupid, clueless voters – like some all ya – who cannot admit they made a horrible mistake.

  • Clyde Duncan  On May 13, 2017 at 11:48 pm

    Opinion: Trump Must Be Impeached. Here’s Why.

    Laurence H. Tribe | The Washington Post

    Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School.

    The time has come for Congress to launch an impeachment investigation of President Donald Trump for obstruction of justice.

    The remedy of impeachment was designed to create a last-resort mechanism for preserving our constitutional system. It operates by removing executive-branch officials who have so abused power through what the framers called “high crimes and misdemeanors” that they cannot be trusted to continue in office.

    No American president has ever been removed for such abuses, although Andrew Johnson was impeached and came within a single vote of being convicted by the Senate and removed, and Richard Nixon resigned to avoid that fate.

    The country is now faced with a president whose conduct strongly suggests that he poses a danger to our system of government.

    Ample reasons existed to worry about this president, and to ponder the extraordinary remedy of impeachment, even before he fired FBI Director James B. Comey and shockingly admitted on national television that the action was provoked by the FBI’s intensifying investigation into his campaign’s ties with Russia.

    Even without getting to the bottom of what Trump dismissed as “this Russia thing,” impeachable offenses could theoretically have been charged from the outset of this presidency. One important example is Trump’s brazen defiance of the foreign emoluments clause, which is designed to prevent foreign powers from pressuring U.S.A. officials to stray from undivided loyalty to the United States of America. Political reality made impeachment and removal on that and other grounds seem premature.

    No longer. To wait for the results of the multiple investigations underway is to risk tying our nation’s fate to the whims of an authoritarian leader.

    Comey’s summary firing will not stop the inquiry, yet it represented an obvious effort to interfere with a probe involving national security matters vastly more serious than the “third-rate burglary” that Nixon tried to cover up in Watergate.

    The question of Russian interference in the presidential election and possible collusion with the Trump campaign go to the heart of our system and ability to conduct free and fair elections.

    Consider, too, how Trump embroiled Deputy Attorney General Rod J. Rosenstein and Attorney General Jeff Sessions, despite Sessions’ recusal from involvement in the Russia investigation, in preparing admittedly phony justifications for the firing on which Trump had already decided.

    Consider how Trump used the vice president and White House staff to propagate a set of blatant untruths — before giving an interview to NBC’s Lester Holt that exposed his true motivation.

    Trump accompanied that confession with self-serving — and manifestly false — assertions about having been assured by Comey that Trump himself was not under investigation. By Trump’s own account, he asked Comey about his investigative status even as he was conducting the equivalent of a job interview in which Comey sought to retain his position as director.

    Further reporting suggests that the encounter was even more sinister, with Trump insisting that Comey pledge “loyalty” to him in order to retain his job.

    Publicly saying he saw nothing wrong with demanding such loyalty, the president turned to Twitter with a none-too-subtle threat that Comey would regret any decision to disseminate his version of the conversations with Trump — something that Comey has every right, and indeed a civic duty, to do.

    To say that this does not in itself rise to the level of “obstruction of justice” is to empty that concept of all meaning.

    Obstruction of justice was the first count in the articles of impeachment against Nixon and, years later, a count against Bill Clinton. In Clinton’s case, the ostensible obstruction consisted solely in lying under oath about a sordid sexual affair that may have sullied the Oval Office but involved no abuse of presidential power as such.

    But in Nixon’s case, the list of actions that together were deemed to constitute impeachable obstruction reads like a forecast of what Trump would do decades later — making misleading statements to, or withholding material evidence from, federal investigators or other federal employees; trying to interfere with FBI or congressional investigations; trying to break through the FBI’s shield surrounding ongoing criminal investigations; dangling carrots in front of people who might otherwise pose trouble for one’s hold on power.

    It will require serious commitment to constitutional principle, and courageous willingness to put devotion to the national interest above self-interest and party loyalty, for a Congress of the president’s own party to initiate an impeachment inquiry. It would be a terrible shame if only the mounting prospect of being voted out of office in November 2018 would sufficiently concentrate the minds of representatives and senators today.

    But whether it is devotion to principle or hunger for political survival that puts the prospect of impeachment and removal on the table, the crucial thing is that the prospect now be taken seriously, that the machinery of removal be reactivated, and that the need to use it become the focus of political discourse going into 2018.

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