The Autocratic Precipice, and The Path Ahead

No people ever recognize their dictator in advance. He never stands for election on the platform of dictatorship. He always represents himself as the instrument of Incorporated National Will. When our dictator turns up, you can depend on it that he will be one of the boys, and he will stand for everything traditionally American. And nobody will ever say “Heil” to him nor will they call him “Fuhrer” or “Duce”. But they will greet him with one great big, universal, democratic sheeplike bleat of “Okay, Chief! Fix it like you Wanna!”
— Dorothy Thompson, 1935

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Were she transported through time, Dorothy Thompson, a forgotten heroine of an era uncomfortably similar to our own, would no doubt recognize the current conditions. Expelled from Germany for criticizing Hitler, the first journalist to be so accorded the honor, her words travel back to us with a comparative similarly sufficient to make one wince: “He is formless, almost faceless, a man whose countenance is a caricature, a man whose framework seems cartilaginous, without bones. He is inconsequent and voluble, ill poised and insecure. He is the very prototype of the little man.”

Whether or not Donald Trump- scion to money, emboldened by celebrity and television marketing, swaggering with indifference to the gentle sway of modesty, tradition, and restraint — is ‘everything traditionally American” or the antithesis thereof is a question best left to posterity. And while no one calls him Fuhrer or Duce, the uncomfortable chill of autocracy does indeed seem to be spreading its wings over the White House. Within a short period of time, the President has ignored Congress and used his authority via diktat, alienating in short order Muslims, Mexicans, and Jews with deliberate and long-promised malice. The American people have not responded as Thompson feared, perhaps, as resistance has been loud, and it has been sustained. Yet the day is early, and the underlying question unanswered: Will it be enough?

Authoritarianism arrives, as Hemingway spoke of bankruptcy, in two ways: gradually, and then suddenly. Our slide into receptivity for extra-constitutional means of governance has a long and detailed provenance, with a thousand fathers of shame. Our system was created by men of civic virtue, and civic virtue is presumed to be a requirement of taking the wheels of Constitutional governance for a spin. Yet what happens when civic virtue is absent? What happens when those whose goal is to, in Presidential counselor/Rasputin Stephen Bannon’s terse phrase “destroy the state” have been granted state power? Our institutions are not self-governing. They rely on preconditions that have broken down in the face of the fracturing of a population inflamed by demographic terror, and the willingness of all too many to abandon such institutions in the service of base domestic political goals. Much like the economy of Atlantic City, it has taken the steamrolling form of Donald Trump to reveal to us the full breadth of decay and collapse.

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ABC News

The first ten days of the Trump Administration have been stunning in the breadth of illiberalism and spectacle, the signature of an executive order held to the camera replacing the “You’re fired” catchphrase as the signature of Trumpian dominance. Yet the sheer number of cannonballs being fired at progressive sacred cows is disorienting to the defenders on the walls; everything from inaugural address historical throwbacks to the Affordable Care Act teetering on the precipice has occupied the thoughts and imagination of an increasingly determined but beleaguered opposition. The swirl of action clouds the vision, rendering it difficult to filter the rush of color to make judicious assessments of fair from foul, critical from optional. For as grave as individual policies, cabinet staffing, and yes, even tweets can be, what we must concentrate on with hyperfocus are those policies which presage lurking autocracy. Individual policies consistent with constitutional government, no matter how odious, can be altered: Obamacare can be reconstituted as Bookercare, immigration policy can be reversed, tax rates can be changed. And such policies are part of the rules of the game: elections after all, do have consequences. But such a concession involves a mental leap that has been automatic for most Americans; namely, that the game remains the same, the Constitution still holds, the elections remain free and fair. And in the smoke and haze of the first week, multiple actions and policies, lurking in plain sight, suggests the game may no longer in play. The first is judicial supremacy, and the second is the preservation of the voting franchise. These are what must occupy the strategic visions of the defenders of the Republic. It makes no sense to bicker about the color of paint on the wall if the roof collapses upon us.

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Business Insider

Upon Donald Trump’s election, the ACLU released a statement promising that “We will see you in court.” Implicit was that while progressives lost the Presidency and Congress, and suffered the outright theft of a Supreme Court majority, the federal courts, well staffed by President Obama, remained as a vibrant bulwark of liberty. Yet what if that confidence is as paper thin as the remainder of our institutions? The shudder of the court-based strategy has been lost in the greater resonance of the so-called Muslim ban. Weeping five year olds separated from their parents on account of little more than religious practice tend to focus the mind, to say nothing of the conscience. But the greater story, and more ominous, is the reaction of the Trump administration to no less than five federal judges issuing temporary stays, two arguably nationwide, of the various aspects of the Executive Order. Reports from inside the White House — unverified, but all too believable — speak of Trump demanding that DHS not comply with the judicial orders. Whether true or not, DHS in fact did not comply with the orders in full. Deportations continued in some places, detainment continued unabated in certain airports, access to counsel was denied. Even the intervention of members of Congress did nothing to alter the executive branch’s refusal to comply with the lawful orders of the federal judiciary. Rep. Don Beyer of Virginia was turned away at Dulles Airport and later stated that “We have a constitutional crisis today. Four Members of Congress asked CBP officials to enforce a federal court order and were turned away.” Whether individual members of DHS chose to refuse compliance or were ordered to do so, the effect is the same; the only thing they were assuredly NOT ordered to do was fully comply. The effect seems limited- so a few hundred people were deported. Democracy has survived worse, has she not? Yet in the margins, the unprecedented has now occurred. If DHS can simply flout a court order, and the President does not require compliance, then let us say honestly what we see unfolding before us. The Executive Branch has rejected judicial supremacy in legal interpretation, and with it, a founding pillar of American constitutional governance.

“NON SVB HOMINE SED SVB DEO ET LEGE” reads the inscription over the Langdell Library reading room at Harvard Law School: “Not under man but God and Law.” The quote originates from a conference between James I and the judiciary of England, the effect of which was that the judiciary, and not the king, would decide cases. It has been the founding bedrock of liberty since, the spirit of judicial oversight infused through the colonists and enshrined in the Constitution. It works as such by trick of mind- it works because we believe it works. Judges carry no weight, no weaponry, other than recourse to arcane doctrine and the trust of the people that their decisions bind layman and government alike. If the Executive has determined it may choose which decisions are binding and which may be discarded, the trick of mind fails, the man behind the curtain is exposed not as an equal partner in governance but as a supplicant, and no longer can any American rest confident that the decision of the judicial branch is worthy of the paper it occupies. If the reports are indeed accurate, we are not under God and Law, but fallible Man, for the first time in four hundred years of Anglo-American jurisprudence.

Truth be told, we have no idea how to react to such a development. Even Nixon, in the heart of crisis, complied with the judicial order he knew would end his career and cast him into permanent ignominy. Yet the Trump Administration — the fingers recoil from even writing such blasphemy against the Republic — has determined that in a comparatively minor matter, acceptance of judicial decision is tantamount to surrender. I cannot presume to read the mind of the President nor his chief counsellors. But one can make out the basic outlines of a head-fake of sorts: to deliberately provoke a crisis with a poorly written, unartfully conceived order that begs for judicial scrutiny, a policy crueler by its chaos than the generic cruelty intended. Should that crisis end with a whimper, the thrashing of liberals confident in the ACLU and judicial supremacy petering out in the face of refusal of the armed wings of the Administration to comply, what then? We have not seen the end of the matter, as the fuller challenge in court awaits. But we can see the ominous iceberg lurking, and must now ask the question unthinkable just two weeks prior: What if the Administration simply refuses to acknowledge the jurisdiction of the courts on matters it deems important? Federal marshals traditionally enforce court decisions against defiant litigants. But the marshals report to the Department of Justice, now wholly under Trump’s aegis. What avenue for compliance is left to the people?

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The Administration is cruel, perhaps, but not completely foolish. Just ten days in, it still needs the familiar garments of democratic legitimacy to cloak its malice and revolutionary ardor. By putting out a press release saying that the Administration would both adhere to the judicial orders but also enforce the ban, it engaged in deliberate doublespeak to give cover to its supporters, with the barest pretense of a straight face of good faith attempt at compliance. The effect is divisive, as perhaps is intended: the supporters have the fig leaf of compliance and can focus on the policy, not the effect. Those opposing are now cast as enemies of a strong national security rather than defenders of a principle extending back to Marbury v. Madison.

We are now in unprecedented territory if the Trump Administration makes compliance with judicial decision optional at the discretion of the Administration itself. The Bush Administration lost four major cases in front the Supreme Court dealing with its chief hobbyhorse of anti-terror policies: Rasul v Bush (2004), Hamdi v Rumsfeld (2004), Hamdan v. Rumsfeld (2006), and Boumediene v. Bush (2008). It may have grumbled, but noncompliance was never considered. The Constitution held. We hope it holds still, but the initial responses are discomforting. Let us say it clearly: this presages tyranny, live and in color. The Constitution contains no national security override, nor can it if separation of powers is to survive. We truly have seen a bright cold day in January, and the clocks have indeed struck 13.

The Administration may yet back down, although there are no signs of it, as the termination, in unsurprisingly but unprecedented personal terms, of acting Attorney General Sally Yates shows. But they have at absolute minimum served notice that they may well choose not to be bound by any judicial decision that runs contrary to their desires, and have tested, quite deliberately, the people’s response. It has been found wanting, no matter what we tell ourselves. Protests are wonderful, but they create a epistemological bubble of like minded individuals. Further, they only work on governments responsive to public opinion. We default to protest because we cannot fathom that American government is not responsive: we imagine LBJ, renouncing re-election in 1968 after being confronted with an avalanche of protest, recoiling from public appearance. It is all we know and has a rich tradition in American history of effectuating change, sometimes immediately, and sometimes later. Yet the march on the Pentagon which so flummoxed LBJ in 1967 against Vietnam drew 100,000; the various women’s marches on inauguration weekend drew approximately 4,000,000, but had no discernable impact on the Administration’s actions. We shield our eyes from the light that blinds us, for self-preservation against what we fear. Yet we must speak the truth. Protest and court decisions are the chosen tools of the Republic defenders. If protest is ignored and court decisions disregarded, what then? We stare into the abyss and ask, and we may not be able to hear yet the answer. What we do know is this: a court-based litigation strategy promised to be the best defense against Trumpism. It may in fact be, by design, its first and most prized casualty.

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cnn.com

The second casualty, and the second occurrence which merits wholescale resistance, is the pending assault on voting laws. Trump, as he often is, was a latecomer to the issue and arrived at it solely based on unhinged narcissism. Few, if any who have ever won an election later complained that the election was marred by fraud of a level sufficient to invalidate it. Yet by claiming, without a shred of evidence, that “three to five million” illegals voted in the 2016 Presidential Election, Trump did just that. He did so, transparently, to avoid the stigma of having to concede that Hillary Clinton prevailed in the popular vote, magnifying the issue and the silliness of the accusation by claiming that “of all the votes cast, none of them come to me. None of them come to me. They would all be to the other side.” Joseph McCarthy himself would blanch at the ridiculousness of the notion. Yet Trump repeated it in a meeting with legislators. The issue would be of little importance, a coda of amusement to the incompetence of the Alternative Facts Administration, except that it represents a justification, flimsy as it is, for the ongoing right-wing assault on voting access and rights. Worse, the President can now sign an executive order initiating an investigation into voter fraud carried out by the very Department of Justice he has just purged of dissenters to his executive orders, in order to turn it over to Jeff Sessions, whose 80’s era prosecution of civil rights leaders for voter fraud proved too much for even Republicans during his nomination for a federal judgeship. In a tweet, Trump ominously confirmed, using his favored references of power and weakness, that “depending on results, we will strengthen up voting procedures.”

Suffice it to say this is a solution desperately searching for a problem. No study, at any point, has demonstrated widespread voter fraud. The best efforts of the Bush Administration to prove widespread voter fraud came to naught. A five year crackdown led to a whopping 86 convictions of voter fraud. In 2005, the federal government charged more Americans with violating migratory bird statutes than election fraud.

Despite the Casablanca-esque denials of Republicans, voter fraud allegations have roots in backlash to civil rights successes in expanding the franchise. In 1993, the Clinton Administration signed the National Voter Registration Act, which encouraged mass enfranchisement by permitting people to register when getting a driver’s license or register by mail. Minority voter registration surged. In 1996, whites voted at a rate 7.7% higher than blacks. By 2008, African American voting percentages equaled whites for the first time, and passed whites in 2012. Worse, population shifts left whites as a shrinking set of the eligible electorate. Whites declined to 71.1% of the electorate in 2012, down from nearly 80 in 1996. Perhaps if conservative policies were amenable to minority concerns, the decline in the white voting population and increase in minority voting would be of little concern. Yet this was not to be. Obama won 93% of African Americans and 71% of Hispanics in 2012. The RNC 2012 autopsy report addressed these concerns by arguing for minority outreach and a more conciliatory stance. The RNC Chair at the time recognized that “By the year 2050 we’ll be a majority-minority country and in both 2008 and 2012 President Obama won a combined 80 percent of the votes of all minority groups…The RNC cannot and will not write off any demographic or community or region of this country.” It did not mention voter fraud. The hinge had been reached. Stymied by loss, the Republicans would moderate and embrace minority positions.

Months later, however, the Supreme Court arrived with a thunderbolt which invigorated conservatives. In Shelby County v. Holder, a slim conservative majority struck down certain aspects of the Voting Rights Act, requiring preclearance by the federal government of states which had traditionally suppressed the vote before any change in voting laws which might abridge the right to vote on account of race. Shelby County permitted the squaring of the circle which had bedeviled Republican strategists; namely, how to broaden appeals to minorities without losing an equivalent or greater number of white voters opposed to minority-friendly policies. Republicans hastened through the door that had been opened with alacrity, leaving the 2012 autopsy stillborn. The RNC Chair who spoke of not writing off demographic communities? He’s now Trump’s Chief of Staff.

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ABC7.com

The effect has been substantial. 16 states had voting restrictions in place for the first time in 2016. Online voting registration, early voting, “Souls to the Polls” Sunday voting which often were an animating force for black votes, same day registration, the purging of ineligible voters from the rolls, and voter ID laws followed Shelby in quick succession. Alabama is instructive: the day after Shelby was handed down, Alabama announced it would enforce a photo ID law for the next election cycle. Numerous studies have shown that ID laws depress Black and Latino communities. Yet rather than make it easier to acquire those photo IDs, Alabama followed by closing 31 driver’s license offices, located predominantly in majority African-American rural areas. Following pushback, the state relented, and opened the offices…for precisely one day per month. Other states were no better: the 2016 election saw 868 less polling places in counties previously monitored under the VRA.

Voter fraud simply does not exist in any substantial format. It is the votes never cast that is the scandal, not the imaginary ones cast by the deceased. Yet with fully half of the 50 states with full Republican control, the tautology of alleging voter fraud to justify voter suppression remains a tangible political goal. Among the states controlled by Republicans are Wisconsin, Ohio, Michigan, Florida, and New Hampshire — states without which, Democratic return to Executive power is a virtual impossibility.

And into this landscape now steps the prodigious ego of the President. Already one wonders if a man who refuses to accept the determination of the courts would accept the rejection of the electorate, itself a question that should chill any democratic heart. If the federal government can join the states in assaults on the voting franchise, he may not have to. We stand at the precipice of living in a democracy where the votes of the people are not equal. Some voters may be more equal than others, and if that is to be the case, only the federal courts — those the Administration is determined to ignore — can alter the formula. If they cannot, Republicans can claim a permanent built-in advantage in sufficient number to make a Democrat in the highest office a decidedly unlikely affair, even as the progressive base emerges in larger numbers. Whatever form of government such bastardized entity is called, it is not a democracy.

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What the hell do we do? It is possible that all is lost: that a quiescent Congress and a population divided between furious progressives and inflamed white conservatives, with a sullen mass of disengaged nonvoters in the middle, can no longer stand as the founders intended against incipient tyrannical government. Perhaps the effect will be to tell Trump and his consiglieres to “Fix it like you wanna!,” the protests being simply the death throes of a mortally wounded order. Yet we cannot simply accept it as such. We are not, as Edward R. Murrow famously observed, “descended from fearful men — not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.” And so with courage we must respond to the emergency that confronts us with strategic insight worthy of the moment. In doing so, we must think of another time, and another leader. Abraham Lincoln was the antithesis of Trump, perhaps, but he understood keeping his vision focused laser-like on the greater good. No opposition to slavery could temper his focus on building alliances with slaveholding border states if necessary to preserve the Union. “I hope to have God on my side, but I must have Kentucky” may be an apocryphal quote, but it pithily echoes Lincoln’s coalition building in defense of the ultimate objective. He saw further than Confederate leaders in assembling allies, and carried the day.

So must we see the same.

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biography.com

We began with Hitler, and perhaps with him we shall end. We recall the Hitler of the war years, the stench of crematoria and the ruins of Berlin attaching to his cursed name for all time. But the rise of Nazism could not have occurred without the consent of ideological fellow travelers. Hitler could and did ignore the left. He could not have, at least not at first, ignored German conservatives, without whom he never could have ascended to the Chancellorship. Without the acceptance of those conservatives, Hitler would be a historical footnote. And so, with some distaste, today’s progressives must turn to supposed ideological opponents to build the coalition against incipient authoritarianism. Trump, perhaps, but certain Bannon, has determined on all out civil war with progressives, and it is a battle he will likely win if he is determined to ignore protests, defy the courts and neuter voting rights, particularly after the fruits of his labor result in civil strife or terrorist attack. But the Administration will face harder sledding if the opposition is broad-based and sustained. Ideological opponents on policy must come together in a defensive alliance on certain unshakeable principles. Politics used to stop at the water’s edge. It must now stop at the Potomac. Progressives must reach out to find alliances with principled conservatives, libertarians, disenchanted Trump voters, corporate interests, remaining Reagan conservatives, and swing-state legislators. Those alliances cannot be, nor should they be policy based, but they must be principles based. We must, at all times, remind our ideological opponents that we are not enemies, but joint inheritors of the last best hope on earth, and our first responsibility is to conserve it for our children and their children. Together, we must remind those inclined to accept a deteriorating Constitutional order as the price for Trump’s signature on specific policy that such a trade is a Faustian bargain, and that as JFK reminded us, those who foolishly sought power by riding the back of the tiger still ended up inside. Opposing or supporting a particular policy or nominee will continue on familiar lines, but the anti-fascist alliance (for that is surely what it must be, in substance if not name) must hold in requiring submission to the rule of law and the preservation of free and fair elections. Anything less will prove ineffective.

Coalition building is hard work, no less so with individuals or groups seen as anathema in quieter times. But these are not quieter times, and a new dogma is required. To save self-government is the mission, and we must be worthy of it. Murrow’s benediction on Americanism during the McCarthyite era must guide us anew: “The only thing that counts is the right to know, to speak, to think — that, and the sanctity of the courts. Otherwise it’s not America.”

Lawyer by day. Star Wars aficionado by night. Hug a wookie and fight the dark side.

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