Author: jxindivisible

Dear Group,

It is no longer about a wall, it is no longer about immigration, and it is no longer about one side “winning.” Now the question is this: Do we respect the checks and balances we’ve been told are so essential to the durability of these United States or do we toss them aside in favor of the “strong man,” the guy who says he alone can “fix it?”

Article 1, Section 7 of the U.S. Constitution reads: “1. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” 

The Constitution is not holy writ, as some seem to claim, but it is the best we’ve got. It has been good enough to keep us from the excesses to which other democracies and republics have fallen. (Remember the Weimar Republic, 1920s Italy, and, recently, Venezuela were all representative democracies, democracies that fell to dictators who bent the rules.) 

The Constitution in Article 1, Section 7 gives the “power of the purse” to the members of the House of Representatives for a good reason: The House is the chamber of the Congress closest to the people, the people upon whose numbers the States are taxed, the people (more or less) represented by the person they send to that House. The power of the purse is a check on the power of President and a check against the oligarchic tendencies of the Senate. That’s why the Framer’s put it in there. We ignore it at our peril.

At least one House Republican has actually read the Constitution and is willing to stand in its defense. You can read his entire text in a very conservative online source, RedState, in an article entitled “Read Justin Amash’s Spot-On Constitutional Explanation Of ‘National Emergencies’” 

Trump has crossed the line in his pursuit of power. Our federal elected officials all swear to “defend the Constitution” when they enter government. Any Congressperson who fails to vote to curb Trump’s autocratic impulse has broken that oath. Even Mitch McConnell (R-KY) “warned against the emergency declaration before it was issued…” and then, tellingly, supported it after Trump ignored his advice. (Granted that McConnell was issuing a warning based on his sense that declaring an emergency might be a bad political move rather than an act contrary to the Constitution. McConnell is, after all, about nothing but political power, not statesmanship.)

The affirmation of the checks and balances of our Constitution is fundamental. It’s importance exceeds all else in the ever roiling news cycle, the wall, the Cohen hearing in Congress, the Trump chitchat with Kim Jong-Un. If we don’t stand for the rules that govern us what do we stand for?

5PM, Feb 26 update: The results are in. H.J.Res.46 passed 245-182 with every Democrat and 13 Republicans voting to “terminate” Trump’s national emergency. Remarkable among these Republicans were McMorris Rodgers and Herrera Beutler. Dan Newhouse was the only Washington State Representative to vote against the measure. I can only recall one other recorded vote in which McMorris Rodgers voted against the wishes of her “positive disruptor.” (The other was a measure that would have gutted the ADA.) Russ Fulcher of Idaho voted Nay. Apparently he and Newhouse both need to read the Constitution along with 182 of the other Republicans.

Research the House members votes on H.J.Res. 46: Relating to a national emergency declared by the President on February 15, 2019. Regardless of today’s vote, they may get another chance in an attempted override of the autocrat’s veto. It is worth your time to let your Congresspeople know how important this vote is and how carefully you are paying attention. Check out your Congressperson’s vote here.

CMR:

Spokane Office       (509) 353-2374

Colville Office         (509) 684-3481

Walla Walla Office  (509) 529-9358

D.C. Office              (202) 225-2006

Rep. Russ Fulcher (new R, ID)

(202) 225-6611 

Sen. Patty Murray (D-WA)

D.C. Office          (202) 224-2621

Spokane Office  (509) 624-9515

Yakima Office     (509) 453-7462

Sen. Maria Cantwell (D-WA)

D.C. Office          (202) 224-3441

Spokane Office  (509) 353-2507

Richland Office  (509) 946-8106

Sen. Mike Crapo (R-ID)

D.C.  202-224-6142

North ID,  208–664-5490

Sen. James Risch (R-ID)

D.C. 202-224-2752

Coeur d’Alene  208-667-6130

Keep to the high ground,

Jerry

Dear Group,

Is McMorris Rodgers a stateswoman or a partisan hypocrite? Will she vote for the action of her autocrat, her “positive disruptor,” or will she cast her vote in defense of the U.S. Constitution? Will she vote against the “executive overreach” she has condemned (but only when a Democratic President was in office)?  

It could not be clearer. Donald Trump, the autocrat, was not voted all the funds he wanted for his non-emergent wall. The Article 1, Section 7 of the U.S. Constitution: “1. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.” 

By Trump’s own admission, “I could do the wall over a longer period of time. I didn’t need to do this, but I’d rather do it much faster.” That is not a description of an emergency. Having declared a bogus emergency he now plans to flout Congressional refusal to provide funds. Their is no clearer demonstration of a President’s contempt for the authority reserved to Congress, specifically the House of Representatives, under the Constitution. . 

McMorris Rodgers and all the other Trump followers will conveniently forget the National Emergencies Act of 1977 contained safeguards that were later dismantled by the Supreme Court (See A Constitutional Crisis for details.) Congress never intended to toss away its Constitutional prerogative to a President without appropriate safeguards, especially to an autocrat acting in precisely the manner Trump just has done.

Today the House of Representatives is likely to vote on H.J.Res. 46: Relating to a national emergency declared by the President on February 15, 2019. The full text of the bill follows:

That, pursuant to section 202 of the National Emergencies Act (50 U.S.C. 1622), the national emergency declared by the finding of the President on February 15, 2019, in Proclamation 9844 (84 Fed. Reg. 4949) is hereby terminated.

This is safeguard against autocracy the National Emergencies Act contained when Congress passed it in 1976.

H.J.Res. 46 has 225 co-sponsors, including one brave Republican, Rep. Justin Amash of Michigan, a man who must have read the Constitution. It will pass the House. In the Senate, with its slim Republican majority, it’s fate is less certain. If it does pass the Senate, Trump will veto it, thus setting up a confrontation in the Supreme Court. Will the Supreme Court uphold the Constitution or the autocrat? We’ll see…but this is the groundwork for re-affirming we are a nation that follows the rule of law, not the whim of a narcissist. 

Call your Representative this morning and let them know how you feel. Then lodge your opinion with both your Senators.

CMR:

Spokane Office       (509) 353-2374

Colville Office         (509) 684-3481

Walla Walla Office  (509) 529-9358

D.C. Office              (202) 225-2006

Rep. Russ Fulcher (new R, ID)

(202) 225-6611 

Sen. Patty Murray (D-WA)

D.C. Office          (202) 224-2621

Spokane Office  (509) 624-9515

Yakima Office     (509) 453-7462

Sen. Maria Cantwell (D-WA)

D.C. Office          (202) 224-3441

Spokane Office  (509) 353-2507

Richland Office  (509) 946-8106

Sen. Mike Crapo (R-ID)

D.C.  202-224-6142

North ID,  208–664-5490

Sen. James Risch (R-ID)

D.C. 202-224-2752

Coeur d’Alene  208-667-6130

Dear Group,

Since last fall, 2018, both the executive and judicial branches of our federal government represent a minority of those who cast votes and a minority of the U.S. population. Let that sink in. The operatives now in control of the Republican Party understand this, and they understand the use of the anti-democratic machinery that offers them minority control. (We Believe We Vote, the Redoubters, and Matt Shea with his 51st State advocacy are all local manifestations I plan to cover in later posts.)

How can this be? Let’s tally it up.

Mr. Trump, like George W. Bush, was elected by a minority of voters. Trump fell short of a popular majority by 2.9 million votes, Bush by 544 thousand. (In 2000, Bush won the Electoral College by 5 votes [271-266] because a 5-4 majority of the Supreme Court effectively awarded Florida’s 25 electoral votes to Bush on a series of technicalities. Every one of that five Justice majority was nominated by a Republican president.*) The last time before 2000 we had a President in office who lost the popular vote was in 1888.

The minority effect cascades into the Judicial Branch: Four of the five of the current conservative majority on the Supreme Court were nominated by GW Bush and D. Trump, the two minority Presidents**: All four, Roberts, Alito, Gorsuch, and Kavanaugh, were put forward by the hyper-conservative, Koch-donoe-group-backed, Powell Memorandum-inspired Federalist Society. 

Supreme Court nominees must receive Senate confirmation, a requirement set forth in the U.S. Constitution. Article II, Section 2, “with the Advice and Consent of the Senate.” Each State elects two Senators regardless of the state’s population or number of voters. In our current system Republican Senators are elected disproportionately from States with lesser populations and fewer voters, giving those voters an outsize influence.

Supreme Court Justices Neil Gorsuch and Brett Kananaugh hold records for gaining confirmation as what we might call “minority Justices.” The cumulative votes that put in office the 45 Senators who voted against the Gorsuch nomination exceed the cumulative votes that put in office the 54 Senators who voted for Gorsuch by 20 million (77 million to 57 million).*** The numbers for Kavanaugh must be worse, since he was approved by fewer Senators of the same Republican voting block, 50-48. These numbers are unprecedented. The nearest contender is Clarence Thomas (1991), voted in by 52 Senators whose underlying voter representation was only 3 million less than that of the Senators opposing him. In contrast, Elena Kagan (2010, Obama-nominated) had a 42 million vote representative excess. 

Finally, consider this: “… when Senate Republicans blocked Chief Judge Merrick Garland’s nomination [under President Obama] to the Supreme Court, the 46 Senate Democrats represented 20 million more people than the 54 Republicans [Senators seated at the time].” In spite of that imbalance, Mitch McConnell (representing the 4.5 million person population of the state of Kentucky [population, not voter numbers]) was able to stiff-arm the Garland nomination over the objections of Dianne Feinstein (representing the 39.5 million person population of California), among others. 

Republicans may thumb their noses and say, “Well, those are the rules,” but those rules are not sacred writ. They simply represent the best compromises that could be achieved among representatives of slave and free states (the Three-fifths Compromise) and small and large states (The Connecticut Compromise) when the Constitution was cobbled together in the summer of 1787. 

This striking minority takeover of the Judicial Branch of our government rolls on in spite of the new Democratic majority in the House. A minority President and Senators representing a minority of the population and a minority of voters press forward to fill lower judgeships (around 100 of them) with Federalist Society approved candidates, judgeships McConnell and company refused to fill under Obama

Since Reagan (1980-1988) appointments to federal judgeships including the Supreme Court have become ever more contentious in parallel with the Republican endorsement of Federalist Society vetted nominees (and concurrent denigration of American Bar Association vetting as “too liberal”)

The federal judiciary has been dragged rightward over the last thirty years (most dramatically in the last two years) by maneuvers of Presidents and Senators representing of a minority of voters (and a minority of the population). They are empowered by the compromises that shaped our Constitution, compromises made necessary by circumstances now long past. We live with the anti-democratic result. 

Keep to the high ground,

Jerry

*Rehnquist (Nixon, Reagan for Chief Justice), O’Connor (Reagan), Scalia (Reagan), Kennedy (Reagan), and Thomas (GHW Bush)

**To be strictly fair, GW Bush won the popular vote in 2004. So, technically, Samuel Alito was nominated in 2005 by a president who, at that time, had been elected by a majority popular vote. 

***Read Will the Supreme Court Still “Seldom Stray Very Far”?: Regime Politics in a Polarized America. This is no small feat of calculation. The whole article from the Chicago-Kent Law Review is well worth a look.

P.S. The Clarence Thomas confirmation final floor vote was: 41 Republicans and 11 Democrats to confirm with 46 Democrats and two Republicans to reject the nomination. Had those eleven Democrats had  means to see into the hyper-partisan future (Gingrich, McConnell, two minority-elected Republican Presidents) perhaps they would have cast against..

Dear Group,

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

That quote is from the Declaration of Independence, the Declaration adopted by a rebellious group of white men in Philadelphia July 4, 1776. (Shots had been fired at the Concord Bridge more than a year earlier, April 19, 1775. Unrest and frustration with British rule percolated among some factions of colonists for years.) The War that followed the Declaration ground on until 1783.

Starting in 1781 representatives of the colonies (still at war with England) came together under the Articles of Confederation. Under the Articles of Confederation there was no executive (president) and no supreme court. Agreement of nine of the thirteen states was required for the Confederation Congress to approve anything, and once a decision was made there was no method to enforce the decision.  “A guiding principle of the Articles was to preserve the independence and sovereignty of the states.”

Six years later in 1787, four years after the end of the Revolutionary War, another group of white men gathered in Philadelphia and put together another document, the Constitution of the United States. In school we are taught a nearly mythic version of this gathering in Philadelphia, a version suffused with lofty rhetoric and noble personages. For some (WeBelieveWeVote.org), the resulting document and system of governance even takes on religious overtones, a document written by men guided by the hand of God. The reality is far more interesting, complicated, and human. The system of governance set forth in the Constitution is a series of compromises among states fractious over the issue of slavery (See Connecticut Compromise—the compromise that gave us a bicameral Congress). If you can take the time, the wikipedia article “History of the United States Constitution” offers a sense of the complexity and length of the process.

The white men in Philadelphia, the “founding fathers,” were intent on assembling a federation of States that could present its united face to the rest of the world, engage other countries in trade, and regulate commerce between the several States.

The phrases “all men are created equal” and “the consent of the governed” do not appear in the U.S. Constitution. In fact, the word “People” appears in the body of the Constitution only once, in this sentence: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” The Constitution is all about the rules of a federal government, rules States could agree upon by compromise to allow this fledgeling union to come together for the benefit of commerce and trade. The process was confusing, messy, and contentious, just like every political process before or since.

Of the thirty-nine signers of the Constitution only six were also signers on the Declaration, only five of those thirty-nine also signed the Articles of Confederation. This was a different group, a group with different goals. Gone was the lofty rhetoric of the firebrands who had put their names on the Declaration of Independence. The Declaration is about all the human reasons for breaking the rules, the human reasons for an act of rebellion. The Constitution is all about making rules.

The Bill of Rights, the first ten amendments to the Constitution, are often thought of as integral to Constitution itself. The word “people” is found only once in the body of the Constitution, as I mention above. In contrast the word “people” is found in the first ten amendments five times. The first ten amendments (The Bill of Rights) were NOT part of the original Constitution. They were proposed at the first meeting of the Congress, in part to placate the anti-Federalists, folks not at all pleased with this new federal government and its structure.

Take-homes for me:

1) The writing and acceptance of the U.S. Constitution was a messy and contentious process. Politics is messy. It is only through hindsight history takes on fine lines, mythic proportion, and even religious overtones.

2) Compromises around slavery shaped the structure of the government the Constitution established. These compromises engendered two un-democratic, unrepresentative institutions, the Senate and the Electoral College, with which we still struggle.

3) The Bill of Rights (the ten of the twelve amendments proposed by the First Congress that were actually ratified), was an afterthought to the business of forming a federal government good for trade and commerce.

4) For 230 years we have struggled to realize the lofty human goals written in the Declaration of Independence. We have struggled within and sometimes against the governmental structures established by the Constitution. Those struggles are written in the twenty-seven amendments appended to that Constitution, including the first ten. We would do well to study our history and remember while the arc of history may bend toward justice, that arc will not so bend without our effort and attention.

Keep to the high ground,
Jerry

P.S. Much of the above comes from an online copy of the Constitution and all its amendments found on line here. I’ve copied below the original wording that came with the Congressional proposal to the States of what became the Bill of Rights two years later (in late 1791).

Congress OF THE United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles [the first twelve amendments, only ten of which were ratified] be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.