hardline political news and analysis

A Democratic Tea Party?

The surprise defeat of NY Rep. Joe Crowley by non-traditional, anti-establishment newcomer Alexandria Ocasio-Cortez has fueled extensive speculation about worrisome chasms opening within the Democratic Party as it struggles to reclaim a House majority.

As with the victories of other newcomers in a number of races around the country, some speculate that the incoming wave of ideological hard-liners – embracing aspirational goals like abolishing ICE, free college tuition and universal health care – might represent less the fresh blood Democrats needed to win the majority, and more a progressive version of the GOP’s absolutist Tea Party faction that became a persistent thorn in the side of Speakers John Boehner and Paul Ryan.

Some observers draw an historical comparison to the 1974 wave election in which 49 Democrats won formerly Republican seats, and 76 new Democrats were elected overall. “It’s going to be … an extraordinary class, like the Watergate Class,” says Rep. Ro Khanna (D-CA), who cites “a hunger for generational change [and] for a new generation of leadership.” (Readers of DOMEocracy know that my recent book, “The Class of ’74,” addresses this topic in depth.)

Experienced political observers – and I acknowledge, some of the traditional ground rules may well be evolving in this volatile atmosphere – counsel caution about drawing too many conclusions from select races. The Crowley/Ocasio-Cortez race makes for terrific speculating, but the degree to which it is emblematic of national trends remains very much open to discussion. Ms. Ocasio-Cortez and other insurgents who will find themselves with voting cards in January 2019 will confront all of the same challenges to enactment of sweeping progressive legislation that progressives before them, like Barney Frank, Henry Waxman and George Miller, confronted when fashioning their own legislative initiatives: the diversity of views within the Democratic Caucus (let alone within the Democratic Party), institutional frustrations with the Senate and White House, addressing inflated expectations that are challenging to match with legislative output.

But in one respect, it is not difficult to predict one likely outcome of the November election, especially if the Democrats find themselves in the majority. The activists who become Members of the House are very unlikely to play the same role in the Democratic Caucus that the Tea Party insurgents have played in the Republican Conference. Indeed, the activists of ’18 are far more likely to resemble the 76 Democratic freshmen of the Class of ’74 than their 2010 and 2012 Republican counterparts.

The 2018 freshmen are likely to arrive with many aspirational policy agendas: immigration reform, affordable higher education, universal health care; as did their 1974 counterparts: ending the war in Vietnam, national health care, energy independence. They are likely to push their leadership on both procedural and policy changes, and to be told the House moves more slowly than some would like. We have already seen candidates voicing support for new leadership, as was the case in 1975, although today’s Democratic hierarchy is far more in alignment with the policy (and ideological) objectives of many of the potential freshmen than was true four decades ago. Still, as in 1974, there may be pressure for changes; Speaker Carl Albert was pushed aside at the end of the 94thCongress to make way for Tip O’Neill, and some freshmen are already targeting Democratic Leader Nancy Pelosi and others in the top positions. The long-time Leader appears content to have candidates say whatever they like if it helps achieve their mutual goal: a House majority. ‘Just win, baby,’ she was recently quoted as telling her critics.

There may well be challenges to some of the current members who are expecting to become chairmen, many of whom have served long tenures and have long lines of frustrated, aspiring colleagues waiting to move up. In 1975, three chairmen were removed by the Caucus, with near unanimous support of the freshmen. All were either elderly, autocratic or grossly out of line with the ideology of the Caucus (or some combination of the three). It is far more difficult to identify such out-of-step committee leaders today. Ironically, despite the historic challenge to the seniority system in 1974, there remains substantial support for honoring the seniority system within the Democratic Caucus, especially among many minority members who remain skeptical they could win chairmanships were the system abandoned.  However, there could easily be pressure for term limits on chairmen, an idea floated several times in recent years.

In one very important respect, however, the Class of ’18 is likely to resemble the Class of ’74 more than those of ’10 or ’12. “You campaign in poetry,” it is said, “but you govern in prose.” The high-minded rhetoric of campaign speeches inevitably encounters the harsh reality of diverse viewpoints within the House.  The complexities of the legislative process – substantive, procedural, institutional – combine to produce work products with less grandeur than envisioned by idealistic candidates. When encountering this reality of the democratic process, the Tea Party and Freedom Caucus activists have regularly proven obdurate, standing on principles not shared by the vast majority of the Congress, and willing to obstruct the processes of government and sully the reputation of the institution in which they serve. Doing so presents few problems for these extreme conservatives who have few objectives that require an operational federal government.

The Democrats of 2018 are unlikely to assume such a stance because, like other Democrats, they both respect and need a credible, functional government to achieve their goals. Ultimately, few Democrats are prepared to shut down government or demean the House because only with a functional and respected (or something approaching it) government can they achieve the policies they promote. The freshmen of 2018 will certainly demand some changes and, like those of ’74, they may well throw some sharp elbows and annoy their veteran colleagues. But like the Class of ’74, they are far more likely to become dependable supporters of the achievable, not a Democratic version of the Tea Party nihilists.



Trump’s Katrina?

Sitting at my vintage roll-top desk in Santa Fe, NM, looking out over the Sangre de Cristo mountain range, I admit I might be losing some perspective about the political mood in Washington (or elsewhere, for that matter), but it is beginning to feel like things are changing, maybe even significantly.

It’s a recent sensation, maybe fueled by the calm and progressivism of the high desert. Certainly the four day drive here is not responsible: barreling through southern Ohio, Indiana, Illinois, Oklahoma and the Texas panhandle … well, let’s just say there weren’t a lot of “I’m Still With Her” or “I Miss Barack Obama” bumper stickers to be seen.

But over the last few days, one gets the decided impression that the wheels are coming off the Trump limousine, that the chaotic, volcanic, mean-spiritedness of this accidental president and his crazed band of acolytes is taking too costly a toll on the nation’s patience and conscience. The issue isn’t so much liberal versus conservative or Democrats versus Republicans, but rather a growing realization that an unhinged and dangerous autocrat is putting our political and moral traditions and institutions at risk, and that even if one shares some of his policy objectives (which morph from hour to hour, tweet to tweet), the price of vesting power in so unpredictable and venal a narcissist is beyond responsibility.

The chaos over the forced separation of families and the incarceration of thousands of children, many under one year of age, has altered the perception of Trump’s competence as a president and decency as a human being. People are enraged and moved to action. One on-line effort to raise $1,500 to support legal assistance for separated families has raised $15,000,000 at last count.

When the histories of this bizarre chapter of our national story are written, the Trump presidency will likely stand out as a moment of madness fueled by mass (and largely racist and nativist fueled) resentment. Beyond the incarceration policy itself; beyond the brazen lying about whether it was mandated or even allowed by earlier law; beyond even Melania’s incomprehensible decision to select, from her gargantuan wardrobe, a jacket emblazoned with “I really don’t care. Do U?,” while visiting jailed toddlers, one feels a growing national perception that something malicious and dangerous is afoot.

Any hopefulness is tempered by two interesting news stories that provide conflicting signs of where public opinion rests, giving pause to any sense of our having turned a corner towards a brighter, more compassionate post-November world.

On the one hand, a Gallup poll published on June 21 (which in so many ways wasthe longest day of 2018), reports that 75% of Americans, a record high, believe that immigration is a good thing for the U.S., up from 71% last year. The high support is registered across all party groups. If asked about “legal” immigration, the number rises to 84%. What seems notable is the high level of support for immigration without qualification.

Indeed, just 19% of those polled are negative about immigration, and just 29% — a record low — think rates of immigration should be decreased, a 6 point drop from 2017 despite Trump’s incessant vilification of immigrants. In fact, 28% think levels should be increased.

Before Trump critics and especially Democratic political operatives get too optimistic about the political calculus of these findings, it needs to be noted that some recent polls give Trump his highest approval rating since becoming president, pretty close to the 45.9% of the popular vote he received in 2016. That fact alone is remarkable. Any other president, presiding over a growing economy, would have registered gains in popularity during the first one and a half years in office. But the steady support, not to mention the obsequious and slavish succumbing to Trump by congressional Republicans, reflects the power of his continued strength among base GOP voters who may well be highly motivated to get to the voting booths this fall. The key variable for the Fall congressional elections, in addition to the get-out-the-vote performance of Democratic voters like minorities and youth, will be the voting decisions of more moderate Republicans. Especially critical votes will come from suburban women and independents who might be prepared to vote Democratic to check Trump, if not embrace the Democratic agenda.

Still, one had to be mystified that despite the daily tirades, tweets, meltdowns, mis-steps and malevolent, punitive policies, Trump retains the support of 45% of voters. What signal does that enduring support send to an egomaniac who wrings signs of devoted approval out of the faintest glimmer of approval?

I really don’t get it. Do you?

Trump’s State Sponsored Child Abuse

Having been the main congressional staff person behind the drafting and passage of a major federal child welfare law in 1980, I would have to say that Zeid Ra’ad al-Hussein, the Jordanian diplomat who serves as the United Nations high commissioner for human rights, has got it about right. Donald Trump’s policy of wrenching children from their parents and incarcerating (there isn’t really a better or more accurate term) them in caged institutions is about as close to “government sanctioned child abuse.” Al-Hussein is borrowing the terminology from the American Association of Pediatrics. As child psychologist researchers have documented, the developmental impacts of such early trauma can be devastating.

It is difficult to describe how many ways the Trump policy violates federal law, international standards, professional ethics and basic human decency. If Trump or Congress, or both, fail to swiftly bring this Dickensian policy to a close, as many as 30,000 children could be separated from their parents and guardians by the end of the summer, according to one California congressman.

Trump’s blatant and brazen lies about the origins of the policy creating family separation would, in any other administration, be sufficient for people to question the president’s competence, let alone morality. “They could be murderers and thieves and so much else,” Trump warns about undocumented entrants. Democrats like Nancy Pelosi and Chuck Schumer, he ridiculously charges, want “open borders,” oppose tightening entry procedures, and “came out in favor of MS-13,” the murderous gang. Why Pelosi would go into a room with this maniac is almost impossible to imagine.

There is no law mandating that children be separated from their families. That didn’t stop Trump’s prevaricating press secretarySarah Huckabee Sanderswho fatuously declared last week, “It’s the law, and that’s what the law states.”Sanders is not alone among White House lackeys willing to castigate refugees and asylum seekers. “Parents who entered illegally are by definition criminals,” said Kirstjen Nielsen, the secretary of homeland security, who is doubtless anxious to prove her toughness and so avoid another humiliating drubbing by Trump in front of the rest of the Cabinet. “By entering our country illegally, often in dangerous circumstances, illegal immigrants have put their children at risk.” Thanks to Trump’s policies, that observation is indubitable. Indeed, Trump’s entire style of governing (pardon the use of the word), whether with respect to immigration, health care, North Korea or deficit creation, seems to be the purposeful creation of crises he then calls upon others to solve.

Sanders is simply re-enforcing the hysteria of the President who irrationally blames Democrats for refusing to change a policy they had no role whatsoever in creating. Indeed, Democrats passed a 2008 law, signed by George W. Bush, thatlimits the time certain unaccompanied minors can be held in detention to 72 hours, a restriction flagrantly  violated by the Trump detention order. Under federal foster care law, children must be strictly monitored with periodic updates of their placements, which must be in the least restrictive setting available. By contrast, according to McClatchy reporters, “U.S. officials have lost track of nearly 6,000 unaccompanied minor kids.” Emphasis added, as if it needs to be.

Trump and his enablers are using the children as hostages, hoping to force Senate Democrats (they don’t need any in the House) to sign off on a punitive and costly border enforcement policy that includes a multi-billion dollar wall that Trump had promised taxpayers would be fully funded by Mexico. Similarly, Trump needlessly but intentionally created a DACA crisis in hopes of provoking Congress to pass an ill-conceived immigration-border enforcement statute. Actually, as he proved in Tuesday’s meeting with congressional Republicans, Trump doesn’t care what proposal is actually approved; he simply wants a bill passed that he can sign with that outsized, ego-fueled Sharpie signature, and he is willing to rip kids away from their parents, put them in cages, and lock them up to achieve that goal.

Last week, Sen. Jeff Merkley of Oregon took himself down to one of the detention camps and demanded entry. The press-savvy thugs who ran the facility cleverly decided to bar him from inspecting facilities paid for by U.S. taxpayers. Inexplicably, Merkley left, but this week, he and other Democratic legislators wisely returned to the detention camps this week to demand the release of the children. Meanwhile, back in Washington, some Republicans are squirming over the horrifying news coverage and are urging the president to alter his course, less because of concern about the zero-tolerance policy than its impact on their elections and potential control of the House.

Although the scenes of terrified children hugging their parents’ legs and crying uncontrollably, and pictures of the huge cages holding children’s beds, have shocked the world, Democrats should not assume this issue is certain to win them broad voter support. This is precisely the kind of volatile issue that Trump has shown a talent for exploiting by wrapping himself in the flag (he actually hugged one this week) and casting himself as defender of the border. Democrats need to be careful not to be pigeonholed as soft on unauthorized entries, while unqualifiedly voicing their outrage at the Trump policy. Assuming the votes of middle of the road voters will be decided on the child detention policy may well prove illusory.

Let’s be clear: the responsibility here rests with congressional Republicans. All the sympathetic statements emanating from their hypocritical mouths don’t mean a thing if they can’t find the courage to stand up to Trump, end the child separation policy and make DACA a permanent policy. Pretending that these self-created crises can only be resolved by folding them into controversial immigration policy that cannot receive 60 votes is just playing games. The children in the detention centers should be the ones playing games, not spineless legislators.

Back in 1980, when we passed the Child Welfare and Adoption Assistance Act, we called the policy of losing children in indeterminate foster placements “state sponsored child abuse.” Here we are, four decades later, and the President of the United States smugly touts a   policy he fashioned as essential to our national security. Al-Hussein has it right – this is government sanctioned child abuse — but Trump couldn’t care less about children or human rights. Just to make the point perfectly clear, on Tuesday, Trump quit the UN Human Rights Council.

Begging Trump’s Pardon

I suppose somewhere there still is an incredibly naïve person who thinks that Republicans believe in what they purport to be their most sacred principles. Reducing deficits, free trade, reforming entitlements, controlling spending, demonstrating compassion for DACA residents – where does the list end? They have abandoned every one. No less an authority than former Republican Speaker John Boehner recently said there is no longer a Republican Party; it has been replaced by the Trump Party.  Still, let’s give them one more opportunity to pay fealty to supposedly deeply-held beliefs. Case in point: investigating the abuse of the presidential pardon authority.

When Bill Clinton unwisely end-ran the formal pardon review process as he was departing the White House, Republicans in Congress quickly expressed outrage. “When a pardon appears questionable on the merits,” declared then-Rep. Dan Burton of Indiana, chairman of the House Government Reform Committee, “the American people have a right to know why the president made his decision so that the constitutional power to grant pardons will not be abused in the future.” A spokesperson for the committee added, “the American people deserve an explanation.” So, once again, are the Republicans going to live up to their principles or, as they have for two years, simply slavishly succumb to Donald Trump’ egotistical and autocratic whims?

Over the past few months, President Trump has been on a frolic of executive authority. Once again on Thursday, he dug into his executive toolbag to flex another Article II power, the pardon. Trump issued his latest pardon to a conservative author and felonious fundraising criminal, Dinesh D’Souza. It wasn’t the first Trump pardon to raise eyebrows: he pardoned Dick Cheney’s convicted chief of staff, Scooter Libby, racist Arizona Sheriff Joe Arpaio, as well as boxing champion Jack Johnson, who was truly abused by the legal system and is long dead. There is every indication Trump is just warming up to his use of his pardon authority: other names being floated include Martha Stewart, who lied to federal investigators, and former Illinois Gov. Rod Blagojevich who, well, was just behaving like most Illinois governors.

Moreover, Trump has a rich stable of candidates for potential pardons down the road should they learn from his pardons of unapologetic felons and keep their mouths shut when prosecutors come nosing around: Paul Manafort, looking at decades in the slammer; Michael Cohen (who knows how many centuries they could put him away for?); even Don, Jr., for colluding with the Russians. It would be surprising if all of them weren’t longingly gazing at Trump’s pardon pen; the poor guy could get a powerful case of writer’s cramp just signing the formal documents!

The nice thing about the pardon is that the President doesn’t need to ask Congress to approve it, and Congress can’t undo it either; nor can the courts review it, as they can executive orders. This power is pretty much absolute and unreviewable; you could say it’s on the (White) House.

Except it isn’t supposed to be that simple. For while the pardon power clearly belongs to the president, there is a bit more to the pardon process than is being reported in press accounts of the D’Souza pardon. I know, because I actually spent months in 1998-2000 working through the complexities of the pardon process on behalf of a truly deserving, very elderly Navy veteran who had been railroaded into prison during World War II on a fallacious charge of mutiny.

Unlike the Trump pardon frenzy, Congressman George Miller followed  the pardon process as established in the Department of Justice and the White House. We spoke with the Pardon Attorney, we talked with the White House Counsel, we helped engage a pro bono attorney to work with the gentleman, Freddie Meeks of Los Angeles, to thoroughly research the background of the case, the trial and appeal (in which Meeks was represented by NAACP Legal Defense Fund attorney Thurgood Marshall, among others). Meeks’ life during the half century since his release from prison was carefully scrutinized (standard practice  in regular pardon cases) to ensure he had lived honorably and within the law. And only then, after months of careful review, was a pardon granted.

Now not all pardons go through that formal procedure; indeed, not even all pardons by Bill Clinton endured the detailed scrutiny of the Pardon Attorney, sd in the scandalous pardon of international financier and fugitive Marc Rich, which Rep. Burton insisted that Congress investigate. But Trump, by forgiving the utterly unrepentant, without any deference to the vetting process, has reduced the pardon procedure to a mockery, the same effect he seems to have on everything, and everyone, he touches.

Sabotaging the “Summit”

It is not unreasonable to ask whether Donald Trump and his hapless band of congressional allies are purposefully sabotaging the operations of the United States government, or are simply so incompetent that they cannot help stumbling into both dysfunction and ridicule by sheer misfortune. In all likelihood, it is a combination of the two, a conclusion that should not make anyone feel better about the state of chaos into which our government has crash-landed.

The decision by Trump to cancel the upcoming “summit” with North Korea’s Kim Jong-Un demonstrates the utter unpredictability and impulsiveness of this most chaotic of administrations. Unpredictability and impulsiveness are never helpful traits in international affairs (or national politics, for that matter), but in dealing with a nuclear-wielding Kim, probably even less so than usual.

In typical Trumpian fashion, the president lays blame on someone else for his own decision. His typically grammatically-challenged letter to Kim blames the erratic North Korean for the cancellation of the summit, a decision that was, as a matter of fact, made by Trump himself. Trump wrote, “I feel it is inappropriate, at this time, to have this long-planned meeting.” That sure sounds like it is Trump breaking up with Kim before Kim can break up with him. Still, Trump holds out the hope the two can reconnect down the road, maybe in time for a nice October surprise before the fall election. “If you change your mind having to do with this most important summit,” Trump offers, “please do not hesitate to call me or write.”

So why the cancellation? As Trump tells Kim, it is because of the “tremendous anger and open hostility” demonstrated in Kim’s recent statements, such as referring to Vice President Mike Pence as a “political dummy” for reiterating National Security Advisor John Bolton’s speculation that the resolution of North Korea’s nuclear program might resemble the “Libyan Model.” Kim likely recalled that the “Lybian Model” ended with one-time nuclear aspirant and dictator Moammar Gaddafi a bullet-riddled corpse in a drainage pipe. Never mind Trump’s threats of unleashing “fire and fury” on the North Koreans or his boast that he has a big, red “nuclear button” sitting on the Resolute desk (which, incidentally, he does not). Indeed, even in his letter calling off the summit, Trump cannot help but boast that the U.S.’s nuclear arsenal is “so massive and powerful.”

It seems a bit odd to cancel the summit – which in any event was an impromptu conference at which, in all likelihood, Trump would get a nice photo and little else – the day after Kim apparently blew up the tunnels used at his nuclear test facility, which might have been a more demonstrable act of serious interest in negotiating than his throw-away comment about Pence. Moreover, as Trump noted in his letter, Kim had emancipated three American citizens from Korean prisons (though he deserves little praise for liberating three people he had unlawfully kidnapped and jailed in the first place). Coming after these acts of supposed good faith by Kim, and just weeks after Trump demonstrated the unreliability of our own commitment to nuclear agreements by cancelling our participation in the Iran deal, one can easily believe that the North Koreans would have little reason to have much confidence in any future negotiation with Trump.

If there is no summit in June, at least there is summit bling, whose value will now undoubtedly be greatly enhanced on eBay. The  commemorative coin – a comically elaborate version of those now regularly distributed by political leaders after the tradition of military commanders – includes the profiles of the two great leaders and a decisive declaration that they are holding a “Peace Summit.” Interestingly, the only date on the coin is “2018”. Maybe that should have been the clue that there would be no June bromance in Singapore after all.

A Civics Lesson for Trump and Sessions

As if we needed any further reminders of the reckless disregard for law and the Constitution rampant in the Trump Era, a panel of Republican federal judges has forcefully rejected efforts to punish so-called Sanctuary Cities by curtailing federal grant funds. It is a fair barometer to assume that when a Republican judge uses terms like “tyranny” to describe the actions of Trump officials, even the GOP’s catatonic congressional leadership should wake up and start acting like they are paying attention.

The remarkably strong decision by judges of the U.S. Court of Appeals for the 7th Circuit is a sharp reminder that it is a good idea for officials not only to check the merits of their arguments, but also the backgrounds of judges before whom they will make appeals. The judicial panel, led by Judge Ilana Rovner, not only belittled the arguments of Attorney General Jeff Sessions’ Justice Department, but also delivered a ringing defense of congressional prerogatives and separation of power that is clearly a matter of low priority to the current occupant of the White House.

At issue was whether Sessions (channeling some of the most reprehensible of Donald Trump’s prejudices) should be able to inflict punishment on so-called Sanctuary Cities that decline to cooperate with the federal government’s aggressive policy of rounding up and deporting undocumented people. Cities like Chicago, the subject of Wednesday’s case, have not voided federal law – the constitutionality of which was settled some time ago by a nasty civil war – but rather have declined to cooperate with actions to terrorize immigrant communities. Trump and Sessions responded to vows of non-cooperation by threatening to withhold DOJ grant funds designated for these defiant jurisdictions.

Not so fast, instructed District Judge Harry Leinenweber last September. Leinenweber, who had been named a federal judge by Ronald Reagan, imposed a nation-wide injunction against punishing Sanctuary Cities for protecting their residents. Yesterday, a 3-panel appeal court in Chicago upheld Leinenweber’s decision, and used some strong language to disclaim the logic and constitutionality of the Administration’s argument.

Unfortunately for Sessions and Trump, the judge writing the decision in the appeal was Ilana Rovner, a Reagan and Bush I appointee who with her mother had fled Latvia as a child in 1942 to escape the invading Nazi army. Such an experience is bound to make an impression on a 4-year old.

Apparently it did. Rovner’s ruling dripped with contempt for the Administration’s arguments. Sessions’ heavy-handed intimidation was described as a thinly disguised effort to use “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” And that wasn’t the mildest of Rovner’s rebuke. “The issue before us strikes at one of the bedrock principles of our nation,” she lectured the Attorney General, “the protection of which transcends political party affiliation and rests at the heart of our system of government — the separation of powers.”

To someone who teaches students about the proper role of the Congress in the law-making process, Rovner’s decision reads like a textbook example. “The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government” she wrote. “If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.”

Indeed, as Rovner wrote, Congress “repeatedly refused” efforts by some members to link the funding of federal programs to immigration policies. Numerous bills have been introduced directing that such linkage be imposed, with such menacing names as the “Stop Dangerous Sanctuary Cities Act” and the “Stop Sanctuary Policies and Protect Americans Act,” but Congress declined to enact these alarming bills. She reminded the Administration of the lesson of which legislative drafters are acutely aware, that the language of the law, on which Congress actually voted, is “the best indicator of Congress’s intent [and] and that absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.”

Perhaps Sessions and Trump missed class the day a teacher explained that Congress’ failure to act does not confer special powers on the Executive Branch.

Congress of course can choose to give to the Attorney General, or to anyone else, the power to link the provision of federal funds with certain conditions. But it is up to Congress to make an affirmative decision, not for others in government to assume those powers when Congress fails to do so. Rovner belittles Session’s argument that states and local communities cannot be allowed to interfere with federal law enforcement. “That is a red herring,” she rightly declares, since Sanctuary Cities in no way obstruct enforcement actions by federal officials.

In case the zealots in the Administration missed her point, Judge Rovner further explained that “We are a country that jealously guards the separation of powers, and we must be evervigilant in that endeavor.” But Sessions’ “repeated mantra evinces a disturbing disregard for the separation of powers. The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch,” and when the Executive overreaches, it “falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power.”

Rovner’s scolding must have stung the White House and Justice Department, but it was surely welcome for teachers of civics throughout the country. It s a sorry state of affairs when conservative judges have to remind the likes of Donald Trump and Jeff Sessions what the Constitution says and judicial precedent means. Probably time to get ready for the Tweet storm about lenient liberal judges.



The Art of [Breaking] the Deal

The Trump Administration’s decision to roll back national auto efficiency and emissions standards and challenge California’s right to set tougher criteria will not only make Americans sicker and increase dependency on foreign oil. Trump’s unilateral action will violate an understanding that taxpayers would not finance the revitalization of a non-competitive and inefficient auto industry.

Only a decade ago, Congress agreed to allow tens of billions of taxpayer dollars to be spent out of the financial rescue package in order to save the prostrate desperate U.S. auto industry. Late in 2008, U.S. carmakers begged Congress and the Bush Administration to stave off the collapse of their businesses and the associated loss of millions of jobs in related wholesale and retail enterprises. They were enormously fortunate that congressional leaders were feeling more positively towards auto manufacturers because, a year earlier, a new law had imposed the improved fuel efficiency and emissions standards that would promote competitiveness with Japanese and European rivals.

The negotiations over that legislation had been bitter and protracted. Senators and representatives from Michigan, home of the U.S. industry, had long resisted demands  to modernize their standards. In the midst of the legislative battle on energy policy in November 2007, House Speaker Nancy Pelosi told House freshmen that she would not be bullied as Congress had been for decades. Public officials would set the efficiency criteria, Pelosi declared, not the manufacturers, who would be compelled to implement Congress’ decision. “What were you thinking,” Pelosi reported she had told the auto manufacturers, “to fight [tougher standards] for 30 years?”

Within Congress, reformers like Henry Waxman (D-CA) had long battled the industry’s apologist, Commerce Committee chairman John D. Dingell (D-MI). Sensing that Pelosi and Waxman had the votes, Dingell pleaded to give the auto manufacturers a reasonable time to recalibrate the efficiency of their fleet. Dingell told Pelosi he was prepared to “stuff down the throats of industry” a five-year time frame for industry compliance. “You hate the bill, but you can live with it if you work with me,” Dingell recalled telling Detroit’s big shots. “Otherwise, you’ll get a bill you can’tlive with.”

The resulting Energy Independence and Security Act required auto manufacturers to increase their passenger vehicle and light truck fleet average efficiency to 35 miles per gallon by 2020 – not a 5, but a 13 year glide path — and allowed the Environmental Protection Agency to increase standards when technologically feasible. With growing evidence about the impact of carbon concentration on climate change, President Barack Obama used that authorization to order a fleet average of 50 miles per gallon by 2025.

Only one year later, the manufacturers were at Congress’ door pleading for billions of taxpayer dollars to forestall bankruptcy. Despite their protests that efficiency standards made cars more expensive, they knew it would be futile to seek a relaxation of the mandates while appealing for their bailout. As the financial markets teetered on collapse and jobless claims soared, the Bush Administration and Congress knew that allowing the Big Three auto companies to fail would cause downstream bankruptcies for thousands of auto parts manufacturers, distributors and dealerships with a resulting loss of over a million jobs.

Still, securing the federal aid was far from a certainty, even with the industry pledges to modernize their fleets. Indeed, the new Treasury Secretary, Timothy Geithner, warned congressional leaders that the companies’ recovery plan, due in February 2009, would probably be prohibitively expensive, and that it was “very hard to imagine a sufficiently strong plan outside bankruptcy.” Pelosi, having asked her members to vote for hundreds of billions of dollars for both the Bush and the Obama stimulus plans, plus the TARP financial services bailout, as well as a trillion dollar Omnibus spending bill, was wary of going to the well yet again.  The companies, she advised, would have “to be realistic.” A planned bankruptcy might well be the “best of bad alternatives.”

The earlier legislation setting tough standards for fuel efficiency and emissions reductions helped persuade many reluctant legislators that the auto manufacturers were worth the public risk. Ultimately, the companies received an $80 billion loan using taxpayer funds, with a requirement that they repay it all. To date, unlike other TARP beneficiaries, the auto manufacturers still owe taxpayers billions of dollars.

Now the manufacturers, restructured, back on their feet and competitive again, are cheering on Trump’s decision to weaken the standards that earned them the public’s trust just a decade ago.  Trump’s relaxation of emission and mileage efficiency improvement was “the right decision,” intoned Gloria Bergquist on behalf of the Alliance of Automobile Manufacturers. But Trump’s proposal has drawn angry responses from congressional Democrats. Pelosi dismissed Trump’s rollbacks as part of the “GOP’s dirty energy agenda.”

To many on Capitol Hill, Trump’s announcements looks exactly like a used car salesman’s bait and switch operation, and it is the taxpayer who is getting used. Manufacturers that secured taxpayer subsidies based on compliance with efficiency upgrades are now walking away from their obligations. Car executives should not be surprised if the next time they plead with taxpayers for assistance, they get, as John Dingell had warned, something less salutary “crammed down their throats.”

Ryan’s Decision to Quit

It has been 32 years since a Speaker of the U.S House of Representatives has truly left office of his – or her – own volition. Paul Ryan has not been forced to resign like Jim Wright following a scandal or John Boehner following repeated defections by his own troops. He wasn’t booted out by his own party, like Newt Gingrich, or ousted by an election that ceded power to the opposition like Tom Foley, Dennis Hastert and Nancy Pelosi. Ryan just quit.

Ryan’s decision brings to a close a brief speakership marked by spectacular underachievement. Like Boehner, Ryan proved incapable of effectively managing his deeply riven Republican Conference. Even granted the limited legislative objectives of the modern Republican Party, Ryan has been unable to summon up the political astuteness to perform the most basic function of the congressional majority: to govern.

Only by fashioning the same short-lived coalitions with Democrats as Boehner has Ryan avoided disastrous shutdowns that so delight a substantial portion of his Conference. By stepping up to his obligation to fund the government and prevent the disruption and political damage that inevitably follows shutdowns, Ryan also inflamed the Freedom Caucus/Tea Party faction whose election elevated the GOP to the majority and which now intimidates its Conference colleagues and their leaders.

True, Ryan was able to secure his supreme if misguided goal, a costly tax cut that disproportionately benefits corporations and the wealthy. Together with Senate Majority Leader Mitch McConnell, Ryan shredded conservatives’ so-called commitment to reducing the deficit, not only by pushing through his $1.5 trillion tax cut, but also by bulldozing through Congress an Omnibus spending bill that together added over $1.4 trillion to the Nation’s red ink.

With all due respect to Speaker Ryan’s often touted legislative skills, reducing the taxes of the super-rich and corporations while providing meager cuts to regular Americans (Ryan bragged of a constituent who was receiving $1.50 a month from the tax cut) is not exactly legislative legerdemain. Any demagogue can cut taxes, especially if he doesn’t care about the impact on the deficit.

Moreover, Ryan admitted that his real goal was to inflate the deficit so as to create a rationale for cutting programs like Social Security, Medicare and Medicaid, which benefit tens of millions of Americans, mostly poor, elderly and disabled. Having abandoned h effective deficit-reducing mechanism of the Pay As You Go requirement instituted by Democrats, Ryan instead promoted  a “Balanced Budget Amendment” whose underlying principle he has no ability or interest in honoring.

But Ryan’s failures go even deeper than these examples of his hypocrisy on the question of economic fairness, spending control and deficit reduction. In slavishly capitulating to the erratic, unprincipled and dangerous lurchings of Donald Trump, Ryan has undermined the stature of the institution he was solemnly charged with leading. For nearly a half-century, Democrats and Republicans alike in the House have fought to reassert the role of the Congress as a separate and co-equal branch of government, developing its own legislative initiatives, not simply accepting the demands of an Imperial presidency. Congress, since the 1970s, has engaged in vigorous oversight of the Executive Branch, demanding answers about the spending of funds and the scrutiny of programs that originate with the Congress, and which the President has the responsibility to manage.

Under Ryan, the House has utterly failed in that mission, largely reverting to its onetime status as the pitiful “sapless branch” of government decried by Sen. Joseph Clark (D-PA) a half century ago. Ryan not only weakened Congress by obsequiously deferring to a president who demonstrates contempt for his party’s members, but he severely damaged the honor of the House itself by abandoning the regular legislative order, neutering members of policy committees on both sides of the aisle, restricting opportunities to offer amendments on the floor, and ignoring the pleas of overwhelming majorities of Americans of all ideologies to address issues like gun policy and immigration.

Such a harsh assessment of Ryan’s failed career as speaker undoubtedly will strike some as unkind; doesn’t he deserve compassion, even sympathy, for having to endure the constant pressures, threats and obstructionism from the far-Right Freedom Caucus from which he himself emerged?

Absolutely not. Speakers don’t have the luxury to offer excuses. They play the hand they are dealt as best they can. Nancy Pelosi had to cater to conservatives in her Caucus and deal with an unpopular president whose reckless behavior had driven the nation into two wars as well as an historic recession. John Boehner inherited the speakership by virtue of an extremist minority that showed him little deference and forced him to cut deals with Pelosi and Barack Obama to ensure the continued functioning of the institution he was charged with running.

Ryan has shown no courage and minimal skill. Despite an unearned reputation as a policy wonk, he has little to show for either creative or innovative legislation; in fact, he has little to show for any legislation at all, which may well have been the goal.

He leaves behind a president who adds another trophy of the Washington elite to his wall. He leaves behind a House that has lost institutional capability and public respect. He leaves behind a Conference that is divided and ineffective, one that may well spend much of the rest of this year deciding who might next inherit the job Ryan leaves, or the job he perhaps feared: Minority Leader. From the standpoint of those who care about a functioning, independent House, Paul Ryan has made one sound decision: he quit.



Lamb’s Victory and the 1974 Precedent

Conor Lamb’s improbable but likely victory in yesterday’s congressional race in the 18th district of Pennsylvania raises  comparisons to the 1974 victories of Democratic candidates running in traditionally Republican districts. The significance of those earlier upsets as precursors to a November wave victory, is recounted in my just-published book, The Class of ’74: Congress After Watergate and the Roots of Partisanship.

In one of those surprise elections, in February 1974, John Murtha, the first Vietnam veteran elected to the House, won a seat in Pennsylvania’s 12th district. Murtha’s military background and moderate views, were at odds with the majority of those Democrats running in November, but they helped him win the votes of district residents who had not sent a member of his party to Congress since 1936.

Even more stunning was the election a few weeks later of Richard Vander Veen in Michigan’s 5th district. The seat was vacant not only because the Republican incumbent had resigned, but because that incumbent was the House minority leader, Gerald Ford, who had been appointed vice president. Ford’s seat had been safely in Republican hands since 1912 and few had expected so secure a seat to change parties just 15 months after Richard Nixon’s landslide victory.

Two more special elections in 1974 – Tom Luken in Ohio and Bob Traxler in Michigan – seemed to set a pattern of Democrats filling vacancies in Republican districts, and panic began to spread among Republicans across the country. The House Judiciary Committee’s impeachments hearings and bipartisan resolutions, the Supreme Court’s decision against Nixon on the Oval Office tapes, the President’s resignation and then Ford’s surprise pardon just two months before Election Day all set the public mood against the GOP. In addition, the steadily worsening economy and growing energy crisis contributed to a decidedly anti-Republican sentiment.

Shortly before the election, Congressional Quarterly predicted “substantial gains” for Democrats, perhaps as many as 35 seats, and teased there was “at least the hint of a landslide.” Independent polls showed voters favoring Democrats in a generic congressional race by 20 points in the Gallup and 24 points in Harris. Democrats led in 18 seats held by Republicans, and were reportedly running even in another 32. Just a few weeks before the election, Ford was playing golf with Majority Leader Tip O’Neill and asked his old friend for a prediction. “It’s going to be an avalanche,” O’Neill advised the startled Ford.

The polls, and the early harbingers of Murtha, Vander Veen and the other special election winners proved prescient. Democrats picked up 49 seats from Republicans, elected 76 new members, and pushed their margin in the House to 291-144. The new members of the Class of ’74, called “The Reinforcements” by New York’s Bella Abzug, joined with veterans to implement sweeping modernization of the House and the Democratic Caucus, disbursing power more widely, imposing discipline on chairmen, and elevating issues of importance from Vietnam withdrawal to energy, the environment and children’s policy.

It may be too early to make predictions about the fortunes of congressional Democrats in November based on Lamb’s successful campaign, but some conclusions are clear. In a wave election, when the public is sufficiently fed up and hungry for change, incumbency and party labels do not provide the level of insulation one had long depended upon. While gerrymandered districts can afford Republicans some protection in typical elections, displeased voters stay home, and many seats thought to be secure can be lost. In 1974, well-entrenched Republicans like New Jersey’s William Widnall and Charles Sandman lost supposedly safe seats.

Another clear lesson is that parties aspiring to the majority must cast their nets wide, not only with voters, but with candidates. Lamb does not unqualifiedly reflect the liberal orthodoxy of the national Democratic Party, although evidence suggests he, like others elected in marginal districts, will reliably vote with the party on most measures once in office. But Lamb is the kind of candidate, running in the kind of district, that Democrats must win to reach the 218 seat majority. As liberal Rep. Phil Burton advised junior members in the mid-1970s, “Get to know southerners and conservatives. Be nice to those guys; listen to them. Without them, there is no Democratic majority.”

Several months ago, Democratic National Committee chairman Tom Perez declared Democrats would not support candidates who were not 100% pro-choice. His remarks drew criticism from many who recalled that, but for congresspeople who were not reliable on key issues, the party would not have won the majority in 2006 or been able to pass landmark legislation like the Affordable Care Act. Democratic activists can have purity or they might just be able to have a majority, but the chances of having both are less than, say, the odds of Conor Lamb being elected to Congress.


You can order The Class of ’74: Congress After Watergate and the Roots of Partisanship” from the following online addresses:


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A Holiday for Oil Producers

The Trump Administration has decided oil companies are in desperate need of a holiday, and guess who is going to foot the bill? Surprise, the American taxpayer will pay for this first-class fleecing.

Two decades ago, when oil was selling for less than $30 a barrel, President Bill Clinton promoted a “royalty holiday” that forgave drillers from paying the mandatory fees for the production of oil from deep water leases in the Gulf of Mexico. Freeing oil companies from the royalties, Clinton argued, would fuel interest in federal tracts located in 100 feet or more of water on the outer continental shelf (OCS). Taxpayers would benefit, Clinton asserted, from the payment of up-front bonus bid fees paid by the companies to acquire these so-called “deep water tracts.”

As the Democratic staff director of the House Resources Committee whose ranking member was Rep. George Miller of California, I was very familiar with OCS policy. Miller and I had played a role in the design of the 1978 law that modernized OCS leasing and production.

Although a leading environmentalist, Miller’s district included several large refineries. I was dispatched to ask company executives if, as proponents asserted, a royalty holiday would prompt them to purchase, explore and develop deep water leases. Every executive I interviewed responded with the same answer. “If you want to sell me a lease without any royalty, sure, I’ll take it,” the executives said. “But I would not premise that purchase on a promise that Congress could rescind at any time.”

Congress unwisely approved Clinton’s royalty holiday, which was supposed to end when the price of oil rose to $28 a barrel. But oil prices rose past $30, past $40 to more than $50, and still, the holiday was kept in place by regulators sympathetic to the industry despite oilman George W. Bush’s campaign critique of the policy in 2000 as a “huge tax break.” Tens of billions of dollars due taxpayers have been lost from  development that would likely have occurred anyway.

Now the oil industry friendly Trump Administration is preparing a royalty free holiday of its own, although circumstances are quite different from those of the 1990s. The price of oil is not low and the industry needs little incentive to drill in the deep Gulf, where they have more than two decades of experience. Moreover, the same companies have extensive experience drilling in the deeper, and more perilous, North Sea.

Unlike other nations, the United States does not award its leases to companies that bid the highest royalty rates (although such an option – net profit sharing — was authorized in the 1978 law). Instead, the Department of the Interior auctions off leases to the company that offers the highest “bonus bid” for a tract, a bid that might, or might not, reflect the actual value of the oil and gas deposits within the tract. Federal officials love the up front bonus bid system because they don’t have to wait for years to reap money from the sale as they would if, like other countries, American taxpayers received fat royalties from production of publicly owned oil and natural gas.

If the tract is productive, lessees pay the government from 12.5% to 18.5% in royalties, far less than the royalties they willingly pay other countries for access to their offshore lands. And if the holes come up dry, the government keeps the bonus windfall anyway. If the bid turns out to have undervalued the value of the actual find, taxpayers lose many billions of dollars that could have been recouped had companies competitively bid on the royalty.

Now, the Trump Administration is offering to give up even the inadequate royalties secured by taxpayers for the valuable offshore energy resources they own.

There is no urgent need to spur oil development in America’s deep waters. Oil prices are not historically low, necessitating a spur to development. Perversely, selling off lands prematurely can flood the market with bargain leases, causing the value of bonus bids to drop. Companies winning these leases often defer exploration and production, waiting for prices to rise, fully aware that the Interior Department lamely enforces the law’s due diligence requirements.

With enormous federal deficits swelled by the new tax law, it is no wonder that federal officials are in the hunt for some quick cash, and even speculative bonus bids fit that description. Unsurprisingly, the royalty holiday is being encouraged by the industry-dominated Royalty Policy Committee, whose friends and allies stand to pocket billions of dollars in profits. Even so, the insufficient proceeds gleaned from OCS development are impressive when measured against the taxpayers’ take from private companies that haven’t paid a royalty for the gold, silver, uranium and other valuable minerals they have produced from public lands since 1872. (That is not a typographical error.)

Nearly a decade ago, Miller, Ed Markey, Nick Joe Rahall and others in Congress responded to the Republicans’ “drill, baby, drill” mantra by insisting that companies be barred from bidding on new leases if they were not diligently producing the public leases they already owned. Not surprisingly, Republicans sympathetic to the energy industry laughed off the suggestion. Now, the Trump Administration appears ready to once again auction off public resources for a fraction of their true value. It may be a holiday for oil executives, but once again, it is the taxpayer who will be taken for a ride.


My new book,The Class of ’74: Congress After Watergate and the Roots of Partisanship,” is now available for order from, JHUP and Barnes & Noble. “An essential work of congressional history.” Kirkus Review