Tag: backsliding democracy

Tom’s Report on the State of America’s Democratic Health

As of May 16, 2025

Benchmarks of Democratic Backsliding and Erosion

The big issue this week was the arguments before the Supreme Court regarding the Trump’s executive order eliminating birthright citizenship.  The arguments were more about whether federal district judges can issue nationwide injunctions, or pauses, not so much the constitutionality of the executive order itself.  

The justices, from what I gathered, seemed conflicted about whether to limit federal judges ability to issue nationwide injunctions, especially if letting the law go into effect nationwide will cause great harm while the case winds its way through the courts.  I would think revoking birthright citizenship, or invoking the Alien Enemies Act, or suspending the Writ of Habeas Corpus would fall into that category of immense national harm should the executive order or law be permitted to go forth while it is being fought over in the courts. 

It the Supreme Court limits nationwide injunctions, it would have to devise a clear set of rules for when a judge may order a nationwide injunction or limit the injunction to their district.  I don’t see that happening, if they do, they are crazier than I thought.  Or worse yet, rule that federal district court rulings are limited to the district in which the court resides.  There are 94 federal court districts, chaos would ensue.  

If the Court eliminates nationwide injunctions outright while the constitutionality of the law is being challenged, that would trigger the very real possibility that half the country will have one set of constitutional rights while the other half would have a different set of constitutional rights. For example, if Trump suspends the Writ of Habeas Corpus, five or six district judges may impose an injunction in their districts, but a district in Texas where an immigrant detention facility is located, may not see the suspension of the Writ as unconstitutional.  That would then permit hundreds if not thousands of deportations without due process. The harm would be immense.

In another important ruling, the Supreme Court did extend a block on deporting migrants from Texas using the Alien Enemies Act today (May 16).  Sending the case back to a lower court for additional litigation.

Republicans should be wary of Trump getting his way on this issue of nationwide injunctions and executive orders.  The next Democratic president could declare that the second amendment does not protect the manufacture or possession of AR-15 or similar type weapons.  The president could use an executive order to prohibit the possession, manufacture, sale, and transportation of these items across state lines.  

Republicans are painting themselves into a very small separation of powers corner.  Mitch McConnel basically shanked the Senate years ago.  Mike Johnson turned the House of Representatives into a spittoon full of, you know spit.  Chief Justice John Roberts, just can’t get his head out of his butt, all but declaring Trump King last term. Although, I must say, after creating this Frankenstein presidency, he is doing his best to cage the beast.

Republicans act as if the Democrats will be forever in the wilderness, a token political party for show during elections, but powerless.  If that was their goal, we shall see how they react to losing in the mid-terms and in 2028  Will they accept the outcome(s)?  And once the Democrats return to power, how can they ever, ever, claim overreach?

Amazingly, because of court action and popular backlash to the excesses of the Trump White House by DOGE — and don’t forget the tariff mess — the guard rails are bending, but still in place in some places.  Where the guardrails are missing is Congress.  They are not checking the accumulation of congressionally enumerated powers into the executive branch and seem not to have any interest in checking his power, mostly out of fear I suspect. Then again, some just that holy grail, $5 trillion in tax cuts. most of which will go to the top 1 percent (that is them and their millionaire class)

Some examples of Congressional nonfeasance revolve around Trump’s personal corruption and  profiteering from office .  For instance his ongoing attempt to accept a $400 million 747 from the Emir of Qatar for use as Air Force 1, and it being ‘decommissioned’ and transferred to his presidential library foundation following his presidency; his sale contest of  $Trump (a crypto currency) for White House tour (access?); pocketing tens of millions of dollars in crypto fees through the Trump family’s World Liberty Financial, are all examples of Republicans in Congress looking the other way while Trump engages in what appears to be unconstitutional and corrupt practices.

While there have been some tactical and strategic setbacks for Trump, as the initial 100 days passes into the next 60 days, we are not out of harms way. He will become more dangerous. And, like a trapped and cornered animal, will attack, hard and fierce.  Hang on, it will be like holding on to the ears of an angry wolf.

For a cumulative list of backsliding and erosion of our democracy, please click ‘benchmarks’ or menu above. Updates are in bold.

Tom’s Report on the State of America’s Democratic Health

As of May 9, 2025

I apologize for skipping a week (or two), but was traveling out of town. I also needed a short mental holiday.

The courts are doing their job for the most part. Congress….not so much.

A federal Judge ordered the release of detained Turkish PhD student Rumeysa Ozturk, who is attending Tuft’s University on a student visa, following the submission of a Writ of Habeas Corpus. In its usual measured response to adverse court orders, Trump advisor Stephen Miller said the White House is actively considering revoking the Writ of Habeas Corpus for ‘migrants.’ The Constitution clearly states that the writ may not be suspended “unless when in Cases of Rebellion or Invasion the public safety may require it.” Please see my earlier April 2 essay on Habeas Corpus for a more in-depth discussion on the writ.

In another ruling, a federal judge in San Francisco issued a temporary pause on DOGE’s bulldozing of government agencies and mass firings. Congress did not authorize such activity, per the judge: “As history demonstrates, the President may broadly restructure federal agencies only when authorized by Congress.”

In further court activity regarding Abrego Garcia, who was wrongly detained and deported to El Salvador’s terrorism prison, government lawyers are once again stonewalling the Federal Judge overseeing the case. Government lawyers invoked the ‘State Secrets Privilege.’ This privilege (a Supreme Court invention) lets the government withhold information from a court during civil litigation if the information could damage national security. Unless the information the government lawyers have contain military invasion plans of El Salvador, it is a bullshit ploy. And they know it. Start throwing these bums in jail Judge! Maybe Alcatraz?

Overall, there has been a slight lull in the war on the Constitution, but I think that is because Trump is busy cleaning up his self inflicted tariff mess. If his nomination of Fox host and TV pundit Jeannie Pirro to be the U.S. Attorney for the District of Columbia — replacing the outgoing interim U.S. Attorney who can’t get confirmed — is any indication, the war on decency and rule of law is entering a new low point. She has not worked in the law field in over two decades and her only previous experience was at a local elected judge and then local prosecutor in the early 90s. She will also be the 23rd Fox News personality to get a Trump administration job.

I imagine as the American economy stalls and the U.S. becomes increasingly isolated as a global pariah, Trump will double down on his autocratic tendencies. He pretty much has usurped Congress’ authority, now he needs to go hard and fast after independent new organizations. I expect to see a slew of FCC preliminary investigative reports and license revocations within the next month or two.

Memorial and Remonstrance Against Religious Assessments: How The Supreme Court, Trump, and the Far Right intend to undermine the First Amendment

The Supreme Court recently heard oral arguments whether Oklahoma state tax dollars must be used to fund religious-based charter schools.  The state denied a Catholic Church school’s request for public funding.  During the arguments, most justices seem inclined to require that states provide taxpayer dollars to religious charter schools, if they meet all the other charter school requirements.  If the Court decides to require public funds go to support religious-based charter schools, this would be a fundamental reinterpretation of the 1st Amendment, what Thomas Jefferson called the “wall of separation” between church and state in his 1802 letter to the Danbury Baptist Association.

I don’t think it a coincidence that a week or so after the Supreme Courts’ arguments, Trump signed an executive order establishing a “Religious Liberty Commission.”  The purpose of the commission is outlined in the instructions:

“The Commission shall produce a comprehensive report on the foundations of religious liberty in America, the impact of religious liberty on American society, current threats to domestic religious liberty, strategies to preserve and enhance religious liberty protections for future generations, and programs to increase awareness of and celebrate America’s peaceful religious pluralism. Specific topics to be considered by the Commission under these categories shall include the following areas: the First Amendment rights of pastors, religious leaders, houses of worship, faith-based institutions, and religious speakers; attacks across America on houses of worship of many religions; debanking of religious entities; the First Amendment rights of teachers, students, military chaplains, service members, employers, and employees; conscience protections in the health care field and concerning vaccine mandates; parents’ authority to direct the care, upbringing, and education of their children, including the right to choose a religious education; permitting time for voluntary prayer and religious instruction at public schools; Government displays with religious imagery; and the right of all Americans to freely exercise their faith without fear or Government censorship or retaliation.”

While the language seems religion neutral, we all know this is about Christian religious freedoms and establishing Christianity as America’s established religion.  I don’t see Islamic or Buddhist or Hindu religious imagery being displayed next to the Ten Commandments at public schools.  Do you?  Be very afraid.   Our founding generation was fearful of the establishment of a religious state.  This fear animated two of Virginia’s most influential writers and thinkers:  James Madison and Thomas Jefferson.  

When Virginia’s General Assembly wanted to impose a ‘religious assessment,’ basically a tax to support churches, Madison and Jefferson opposed the measure.  As did the Baptist’s who suffered intolerable abuse by the Anglican Church prior to the Revolution.  In the “Memorial and Remonstrance Against Religious Assessments” Madison penned a cogent argument that is a relevant today as it was in 1785.  

I think it one of the seminal documents in our history as both Virginians and Americans.  As such, I have summarized Madison’s 15 key arguments below. They are worth a close read.

  1.  Religious liberty was “in its nature an unalienable right….because the opinions of men, depending only upon the evidence contemplated by their own minds, cannot follow the dictates of other men….  Religion is wholly exempt from the cognizance [of civil society].”
  2. “Since civil society itself had not right to interfere with religion, certainly the legislature, its creature, had no such right.”
  3. “It is proper to take alarm at the first experiment on our liberties… Who does no see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same case any particular sect of Christians, in exclusion of all other sects?”
  4. “The exercise of religion implies the right to believe in no religion at all, so even the most permissive tax to support religion might violate some consciences.”
  5. “Civil magistrates can properly neither judge religious truth nor subordinate religion to public purposes.”
  6. The Christian religion did not need civil support, it had often “existed and flourished, not only without the support of human laws, but in spite of every opposition from them.”
  7. “’Ecclesiastical establishment,’ far from promoting religious purity and efficacy, had nearly always corrupted and stultified it.”
  8. “Rather than promoting order and freedom in civil society, religious establishments had ordinarily been malignant and oppressive.”
  9. “The assessment marked a first step toward bigotry, differing from the ‘inquisition…in degree,’ and would make Virginia no longer the asylum for the persecuted.”
  10. “Good and useful citizens would be driven from the state or deterred from coming there by a religious tax.”
  11. “Religious strife and violence would be encouraged by laws touching religion.”
  12. “The policy of the bill is adverse to the diffusion of the light of Christianity…. The bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachment of error.”
  13. “An attempt to enforce a religious assessment obnoxious to many citizens would weaken respect for law and order generally.”
  14. “Evidence was strong that a majority of the people opposed the assessment.”
  15. “Because, finally, the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience is held by the same tenure with all our other rights…. Either we must say, that they may control the freedom of the press, may abolish trial by jury, may swallow up the Executive and Judiciary powers of the State, may that they may despoil us of our very right to suffrage and erect themselves into an independent and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration.”

The Bill did not pass and a year later, Jefferson’s Statute for Religious freedom passed into law.  We must remain vigilant against trespasses against the 1st Amendment.  It is the cornerstone of why religiosity thrives in America.  It is the absence of state control in public spaces that permits churches, and mosques and synagogues and tabernacles and temples to spread and flourish across this country.  

Federal Policing in the Era of a Rogue President

Note: I originally posted this essay on my Substack newsletter Bumpass Warbler. Given the continued use of the Department of Homeland Security and the Department of Justice to conduct criminal investigations of individuals named by the White House this essay is worth reposting. This week DHS and DOJ confirmed that they have undertaken multiple criminal investigations against Christopher Krebs, who was named in an earlier Trump executive order. The have crossed a line. Secretary Kristi Noem and Attorney General Pam Bondi have become Trump’s henchmen, and the FBI and DHS the modern equivalent to Stalin’s NKVD. This is not an exercise in hyperbole, their actions constitute the first steps down a slippery slope to a police state. End Note.

Over three decades in law enforcement I saw how policing at the local, state, and federal levels changed, some of it not for the better.  Today, American law enforcement sits at an inflection point, our guiding North Star under attack.  It is not under siege from al-Qaida, or the Islamic State, or criminal gangs like MS-13, it is under threat from within, from a rogue president.  

Our constitutional system of separation of powers and the rule of law is degraded daily, like habitat loss in the Amazon Rain Forest, as the White House continues its relentless bulldozing of norms.  Habitat loss is notoriously difficult if not impossible to restore fully.  Judges are maligned and threatened with impeachment, court orders disobeyed, violations of due process encouraged, speech of foreign students criminalized, constant Habeas Corpus hide and seek games, criminal investigations ordered by the White House, law firm shake downs, arrests and detentions of migrants and valid visa holder without probable cause, harassment of persons of middle eastern origin at points of entry into the United States.  That’s just a sample. 

While we think of constitutional crises as being played out in iconic court battles and Supreme Court hearings, the men and women in law enforcement, in particular federal agents, find themselves in the middle of this chaos every day, just trying to do their jobs.  Trump and his appointees wanting scalps and press events on one side, and their conscience and oaths to defend and protect the Constitution on the other side.  This is where the real battle is being waged for the heart and soul of federal law enforcement.  In stark terms, are we teetering toward a federal police state?

We’re supposed to be on the side of democracy and the rule of law, were that thin blue line dividing law and constitutional order from chaos…and autocracy.  That blue line is not some random color but is deeply symbolic as to the purpose and place of policing in a civil society. We don’t always get it right, and many times the police and federal agents were on the wrong side of history, but the aspiration, the idea was there. 

When deciding on a uniform design for London’s newly established Metropolitan Police Department Robert Peel chose blue.  The army wore red he reasoned, and not wanting the police to think of themselves as an army, and Londoners not see the police as military occupiers, he wisely decided on blue uniforms.

America followed this path in the 1850s when metropolitan police departments began to outfit their officers in uniforms, starting with the NYPD.   Blue was the universal color chosen.  Today we accept uniformed officers, but in the mid 19th century, police uniforms were controversial, hotly debated, as was arming them.  Perhaps a legacy of America’s long-standing antipathy to standing armies. Before guns, wooden clubs were the issued weapon along with a leather badge.  For those that like the historical trivia of things, longer clubs were for night shifts, hence the night stick, shorter clubs were for day shifts. 

As the 19th century progressed, so did the size, power, and responsibilities of urban police departments.  Federal law enforcement as we know it today practically non-existent.  Police precinct buildings became overnight shelters for the homeless, soup kitchens for the hungry.  Police departments conducted inspections on building boilers and were sanitation inspectors for urban slaughterhouses as well.  

From the mid-19th century, police officers who died in the line of duty increasingly began to be afforded military style funerals. Conspicuous spectacles meant to send a message to the policed, and to the police officer on the beat. Today’s police funerals were 19th century inventions.

In time, near the end of the 19th century, the police were transformed into ‘guardians,’ an acknowledgement of their powerful roll in party politics and political patronage, but also in response to white middle-class urban denizens who demanded heavy handed policing to assuage their fears of crime, disease, and immorality attributed to increasing numbers of foreign migrants.  

The 20th century brought police reforms and a growth in the size and number of federal law enforcement agencies.  Paramilitary state police organizations were founded. Policing became more professionalized, union and advocacy groups matured. In the 1980s high-capacity pistols replaced six shot revolvers….and the number of average number of bullets being fired in a shooting went from 6 to dozens.  

9/11 changed America and policing. Many police departments started looking like military units as military surplus gear was handed out like candy.  Tactical uniforms once reserved for special teams, became the rage.  Military style body armor, tactical gear adorned police officers like Christmas tree ornaments, long guns slung from bodies, armored vehicles patrolled streets.  With military style uniforms and gear the mindset changed, I observed.  This change also seeped into federal law enforcement agencies as well.  Robert Peel was right.

As we witnessed recently, federal agents in Homeland Security rounded up and deported over 200 hundred alleged Venezuelan gang members using a late 18th century Act meant to be invoked in case of war.  The men’s due process rights were ignored, they were swiftly deported to a foreign prison despite a federal court order to stop.  The agents knowingly, and apparently willfully, ignored the constitutional right’s of these men, on the orders of one man: Donald Trump. In effect, acting like Trump’s personal army at war.  

It’s not just about Homeland Security or FBI agents; it’s about federal law enforcement in general.  When folks think about federal law enforcement, the FBI comes to mind (mostly because of their PR machine and TV and movie brand), but every federal department has its own law enforcement agency.  About two dozen in all.  They conduct criminal investigation specific to their department’s statutory functions.  For instance, Medicaid fraud for HHS and tax fraud for the IRS or Visa Fraud for the State Department.  They too will eventually (if not already) be tasked to conduct politically driven criminal investigations to punish and discipline Trump’s political opponents.  

To my fellow officers and agents, you must decide whether you will obey illegal orders given by a president you may like and voted for.  Should you obey his illegal orders now, what happens when a new president you don’t like makes similar illegal demands targeting his or her alleged enemies? That’s why we have the rule of law, not men or women. You must decide when and how you will say ‘enough’ to being muscle for party politicians in high places.  It’s not our damn job to be a president’s lawless private army.  

When you are asked to draw up arrest lists and swear to arrest warrants using demonstrably false statements because a president told you to — not because they committed any crimes — you’re no longer officers of the law.  In fact, as you know, you open yourself up to Bivens lawsuits.   Financial ruin, bankruptcy, just like the pillow guy.  We are supposed to be a bulwark against injustice, not its facilitator.  Otherwise, we will find ourselves in a police state.

Finally, let Jan 6 should be a warning to all.  Trump organized, fired up, and sent a mob to the Capitol building.  You know, not many people bring a noose to a rally unless it’s a lynch mob.  They attacked our fellow federal officers.  Scores were injured, crushed, beaten, one tased into cardiac arrest.  One officer died that evening; several took their lives shortly afterward.  Then Trump, in one of his first acts of his second term, pardoned everyone convicted of assaulting and brutalizing our brothers and sisters.  His actions speak loudly.  He isn’t pro-police; he sees you and I as pawns, and like any chess player will sacrifice them for the King.  

Tom’s Report on the State of America’s Democratic Health

As of April 18, 2025

Benchmarks of Democratic Backsliding and Erosion

Are we there yet? Have we arrived at a constitutional crisis?

This week’s actions and reporting primarily focused on two stories. The first centers on the court actions surrounding the illegal deportation of Maryland man, Kilmar Abrego Garcia. Mr. Garcia is legally permitted to remain the the U.S. but was nonetheless wrongly detained and deported to the El Salvadoran super max prison.  The U.S. Supreme Court directed the administration to ‘facilitate’ his return.  ‘Facilitate’ is a pretty poor choice.  What does making it easier even mean in the context of a court order? It’s like facilitating your child to eat broccoli.

Nevertheless. after the Supreme Court’s ruling, government lawyers balked on providing a lower court judges request for information on the government’s plans to return Garcia and his status. The following day or so, during a visit by the El Salvadoran President Bukele to the White House on April 24, Bukele stated he won’t return the Garcia. This all played out before TV cameras during a press event with Buckle. Trump directed a reporter’s question regarding Garcia and the Supreme Court ruling to Attorney General Bondi, who said was it was up to the El Salvadorian President. Taking his cue, Buckle said he didn’t have the power to release Garcia. Sitting to his left was Trump, who smirked like the woman in the Mona Lisa. I was shocked, shocked, given that Buckle was dressed worse than Zelenskyy, he would have been badgered, attacked, and humiliated.

Given the governments failure to adhere to instructions, the judge stated that there is “probable cause” that the government is in criminal contempt of the court. That is serious. Here is the thing however. Should the judge impose a penalty, for instance sending someone to jail, the US Marshal Service would be the ones making the arrest. The Marshals work for the Department of Justice and the Attorney General. Basically, the courts can’t really enforce their rulings. It needs the Executive Department in general, and in particular the Department of Justice regarding criminal matters, to enforce the rulings.

That is the crux of a constitutional crisis we now faces. James Madison wrote in the Federalist papers that the Constitution was a parchment barrier, highlighting is takes acts of good faith for the constitution to survive. If the President and Executive Department does not act in good faith, then the barrier is broken.

The second issue is the battle between Harvard and Trump and his administration regarding funding pauses to the university and a list of demands in how the university operates. The good news is that Harvard pushed back at Trump. This is a pivot point. Below is a copy of the letter. The government now claims the letter was sent in error. Hmmm.

Dr. Alan M. Garber President
Harvard University Office of the President Massachusetts Hall Cambridge, MA 02138

Penny Pritzker
Lead Member, Harvard Corporation Harvard Corporation
Massachusetts Hall
Cambridge, MA 02138

Dear Dr. Garber:

April 11, 2025

The United States has invested in Harvard University’s operations because of the value to the country of scholarly discovery and academic excellence. But an investment is not an entitlement. It depends on Harvard upholding federal civil rights laws, and it only makes sense if Harvard fosters the kind of environment that produces intellectual creativity and scholarly rigor, both of which are antithetical to ideological capture.

Harvard has in recent years failed to live up to both the intellectual and civil rights conditions that justify federal investment. But we appreciate your expression of commitment to repairing those failures and welcome your collaboration in restoring the University to its promise. We therefore present the below provisions as the basis for an agreement in principle that will maintain Harvard’s financial relationship with the federal government.

If acceptable to Harvard, this document will constitute an agreement in principle, which the parties will work in good faith to translate into a more thorough, binding settlement agreement. As you will see, this letter incorporates and supersedes the terms of the federal government’s prior letter of April 3, 2025.

● Governance and leadership reforms. By August 2025, Harvard must make meaningful governance reform and restructuring to make possible major change consistent with this letter, including: fostering clear lines of authority and accountability; empowering tenured professors and senior leadership, and, from among the tenured professoriate and senior leadership, exclusively those most devoted to the scholarly mission of the University and committed to the changes indicated in this letter; reducing the power held by students and untenured faculty; reducing the power held by faculty (whether tenured or untenured) and administrators more committed to activism than scholarship; and reducing forms of

governance bloat, duplication, or decentralization that interfere with the possibility of the reforms indicated in this letter.

  • ●  Merit-Based Hiring Reform. By August 2025, the University must adopt and implement merit-based hiring policies, and cease all preferences based on race, color, religion, sex, or national origin throughout its hiring, promotion, compensation, and related practices among faculty, staff, and leadership. Such adoption and implementation must be durable and demonstrated through structural and personnel changes. All existing and prospective faculty shall be reviewed for plagiarism and Harvard’s plagiarism policy consistently enforced. All hiring and related data shall be shared with the federal government and subjected to a comprehensive audit by the federal government during the period in which reforms are being implemented, which shall be at least until the end of 2028.
  • ●  Merit-Based Admissions Reform. By August 2025, the University must adopt and implement merit-based admissions policies and cease all preferences based on race, color, national origin, or proxies thereof, throughout its undergraduate program, each graduate program individually, each of its professional schools, and other programs. Such adoption and implementation must be durable and demonstrated through structural and personnel changes. All admissions data shall be shared with the federal government and subjected to a comprehensive audit by the federal government—and non-individualized, statistical information regarding admissions shall be made available to the public, including information about rejected and admitted students broken down by race, color, national origin, grade point average, and performance on standardized tests—during the period in which reforms are being implemented, which shall be at least until the end of 2028. During this same period, the dean of admissions for each program or school must sign a public statement after each admissions cycle certifying that these rules have been upheld.
  • ●  International Admissions Reform. By August 2025, the University must reform its recruitment, screening, and admissions of international students to prevent admitting students hostile to the American values and institutions inscribed in the U.S. Constitution and Declaration of Independence, including students supportive of terrorism or anti-Semitism. Harvard will immediately report to federal authorities, including the Department of Homeland Security and State Department, any foreign student, including those on visas and with green cards, who commits a conduct violation. As above, these reforms must be durable and demonstrated through structural and personnel changes; comprehensive throughout all of Harvard’s programs; and, during the reform period, shared with the federal government for audit, shared on a non-individualized basis with the public, and certified by deans of admissions.
  • ●  Viewpoint Diversity in Admissions and Hiring. By August 2025, the University shall commission an external party, which shall satisfy the federal government as to its competence and good faith, to audit the student body, faculty, staff, and leadership for viewpoint diversity, such that each department, field, or teaching unit must be individually viewpoint diverse. This audit shall begin no later than the summer of 2025 and shall proceed on a department-by-department, field-by-field, or teaching-unit-by-teaching-unit basis as appropriate. The report of the external party shall be submitted to University leadership and

the federal government no later than the end of 2025. Harvard must abolish all criteria, preferences, and practices, whether mandatory or optional, throughout its admissions and hiring practices, that function as ideological litmus tests. Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity; every teaching unit found to lack viewpoint diversity must be reformed by admitting a critical mass of students who will provide viewpoint diversity. If the review finds that the existing faculty in the relevant department or field are not capable of hiring for viewpoint diversity, or that the relevant teaching unit is not capable of admitting a critical mass of students with diverse viewpoints, hiring or admissions within that department, field, or teaching unit shall be transferred to the closest cognate department, field, or teaching unit that is capable of achieving viewpoint diversity. This audit shall be performed and the same steps taken to establish viewpoint diversity every year during the period in which reforms are being implemented, which shall be at least until the end of 2028.

● Reforming Programs with Egregious Records of Antisemitism or Other Bias. By August 2025, the University shall commission an external party, which shall satisfy the federal government as to its competence and good faith, to audit those programs and departments that most fuel antisemitic harassment or reflect ideological capture.

o The programs, schools, and centers of concern include but are not limited to the Divinity School, Graduate School of Education, School of Public Health, Medical School, Religion and Public Life Program, FXB Center for Health & Human Rights, Center for Middle Eastern Studies, Carr Center for Human Rights at the Harvard Kennedy School, Department of Near Eastern Languages and Cultures, and the Harvard Law School International Human Rights Clinic.

o The report of the external party shall include information as to individual faculty members who discriminated against Jewish or Israeli students or incited students to violate Harvard’s rules following October 7, and the University and federal government will cooperate to determine appropriate sanctions for those faculty members within the bounds of academic freedom and the First Amendment.

o The report of the external party shall be submitted to University leadership and the federal government no later than the end of 2025 and reforms undertaken to repair the problems. This audit shall be performed and the same steps taken to make repairs every year during the period in which reforms are being implemented, which shall be at least until the end of 2028.

● Discontinuation of DEI. The University must immediately shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives, under whatever name, and stop all DEI-based policies, including DEI-based disciplinary or speech control policies, under whatever name; demonstrate that it has done so to the satisfaction of the federal government; and demonstrate to the satisfaction of the federal government that these reforms are durable and effective through structural and personnel changes. By August

2025, the University must submit to the government a report—certified for accuracy—that confirms these reforms.

● Student Discipline Reform and Accountability. Harvard must immediately reform its student discipline policies and procedures so as to swiftly and transparently enforce its existing disciplinary policies with consistency and impartiality, and without double standards based on identity or ideology. Where those policies are insufficient to prevent the disruption of scholarship, classroom learning and teaching, or other aspects of normal campus life, Harvard must develop and implement disciplinary policies sufficient to prevent those disruptions. This includes but is not limited to the following:

o Discipline at Harvard must include immediate intervention and stoppage of disruptions or deplatforming, including by the Harvard police when necessary to stop a disruption or deplatforming; robust enforcement and reinstatement of existing time, place, and manner rules on campus, including ordering the Harvard police to stop incidents that violate time, place, and manner rules when necessary; a disciplinary process housed in one body that is accountable to Harvard’s president or other capstone official; and removing or reforming institutional bodies and practices that delay and obstruct enforcement, including the relevant Administrative Boards and FAS Faculty Council.

o Harvard must adopt a new policy on student groups or clubs that forbids the recognition and funding of, or provision of accommodations to, any student group or club that endorses or promotes criminal activity, illegal violence, or illegal harassment; invites non-students onto campus who regularly violate campus rules; or acts as a front for a student club that has been banned from campus. The leaders or organizers of recognized and unrecognized student groups that violate these policies must be held accountable as a matter of student discipline and made ineligible to serve as officers in other recognized student organizations. In the future, funding decisions for student groups or clubs must be made exclusively by a body of University faculty accountable to senior University leadership. In particular, Harvard must end support and recognition of those student groups or clubs that engaged in anti-Semitic activity since October 7th, 2023, including the Harvard Palestine Solidarity Committee, Harvard Graduates Students 4 Palestine, Law Students 4 Palestine, Students for Justice in Palestine, and the National Lawyers Guild, and discipline and render ineligible the officers and active members of those student organizations.

o Harvard must implement a comprehensive mask ban with serious and immediate penalties for violation, not less than suspension.

o Harvard must investigate and carry out meaningful discipline for all violations that occurred during the 2023-2024 and 2024-2025 academic years, including the Harvard Business School protest of October 2023, the University Hall sit-in of November 2023, and the spring encampment of 2024. This must include permanently expelling the students involved in the October 18 assault of an Israeli

Harvard Business School student, and suspending students involved in occupying university buildings, as warranted by the facts of individual cases.

o The Harvard president and police chief must publicly clarify that the Harvard University Police Department will enforce University rules and the law. Harvard must also commit to cooperating in good faith with law enforcement.

  • ●  Whistleblower Reporting and Protections. The University must immediately establish procedures by which any Harvard affiliate can report noncompliance with the reforms detailed in this letter to both university leadership and the federal government. Any such reporter shall be fully protected from any adverse actions for so reporting.
  • ●  Transparency and Monitoring. The University shall make organizational changes to ensure full transparency and cooperation with all federal regulators. No later than June 30, 2025, and every quarter thereafter during the period in which reforms are being implemented, which shall be at least until the end of 2028, the University shall submit to the federal government a report—certified for accuracy—that documents its progress on the implementation of the reforms detailed in this letter. The University must also, to the satisfaction of the federal government, disclose the source and purpose of all foreign funds; cooperate with the federal government in a forensic audit of foreign funding sources and uses, including how that money was used by Harvard, its agents, and, to the extent available, third parties acting on Harvard’s campus; report all requested immigration and related information to the United States Department of Homeland Security; and comply with all requirements relating to the SEVIS system.We expect your immediate cooperation in implementing these critical reforms that will enable Harvard to return to its original mission of innovative research and academic excellence.

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You can review the cumulative list of democratic backsliding and erosion by clicking on the menu button or Benchmarks button above. Til next week.

Tom’s Report on the State of Americas Democratic Health

As of April 11, 2025

Benchmarks of Democratic Backsliding and Erosion

The chaos and mayhem continue. While everyone was glued to the self-inflicted and manufactured tariff crises, democratic erosion and backsliding continued.

Of note this week were two Supreme Court’s rulings, one regarding a challenge to the government’s interpretation of the Alien Enemies Act and the other on returning a man wrongly deported to an El Salvadoran prison (also related to the the Alien Enemies Act), and two unprecedented executive orders directing the Attorney General and the Department of Homeland security to coordinate investigations on two former first term Trump administration appointees.

Trump added comedian Bill Maher to his trophy wall.

Attacks on academia, science, and books/ideas continued.

On April 7, the Supreme Court sided with Trump regarding the use of using the Alien Enemies Act to deport Venezuelans associated with a criminal gang designated a foreign terrorist organization by, guess who, Trump.  Incredibly, the Court basically held that government actions under the Alien Enemies Act are largely not subject to judicial review. The court sidestepped the constitutionality of using the Act in peacetime. The following is a summation of the ruling:

  • The plaintiffs according to the Court used the wrong argument.  The plaintiffs challenged the government’s “interpretation” of the Alien Enemies Act.  Citing a 1948 case, the Court stated that Alien Enemies Act is largely not subject to judicial review, or as they wrote, “preclude[s] judicial review.  
  • The plaintiffs should have used the Write of Habeas Corpus, which they did initially, but changed their argument.
  • The Court also removed the US District Court’s jurisdiction to hear the case.  Stating that challenges must be heard in the district of confinement.  In this case Texas, the epitome of fairness and paragon of justice.
  • The Court did say that detainees must be given notice of deportation and that they be afforded an “opportunity to be heard.”  

The Court also issued a separate ruling directing the government to return a man improperly deported to an El Salvadoran prison be returned. However, the Court’s language in the ruling was so poorly and imprecisely worded giving the government wiggle room, which apparently they exploited because the following day, at a lower court hearing, the government refused to comply with lower court judge’s order to update the court on the government’s plans to return the man. The government’s lawyer stating he had no information to relay to the court. Can’t make this stuff up.

In an unprecedented and grim move, Trump signed two executive orders directing criminal investigation into two former political appointees from his first term, Miles Taylor and Chris Krebs. The two did not support publicly support Trump’s assertion that the 2020 election was stolen and asserted that there were not indications that the election was stolen. This is meant to silence every federal employee and every Trump appointee.

You can go to menu or benchmarks above to see the full cumulative list of benchmarks being tracked.

Former CISA Chief Chris Krebs targeted for Possible Criminal Prosecution in Trump Executive Order

In a significant and dangerous escalation of the use of criminal investigations to punish and intimidate, the former head of the Cyber Security and Infrastructure Security Agency (CISA) Chris Krebs was targeted for possible criminal prosecution in an executive order signed today by Trump. The executive order directed that the Attorney General and Department of Homeland Security to “take all appropriate action to review Krebs.” Many will recall that Krebs refused to support Trump’s claim of electronic tampering of voter systems or talliers. He was head of CISA during Trump’s first term in office and oversaw the detection and mitigation of any cyber security threats to voting systems during the 2016 presidential election, which Trump lost.

The executive order states in part: “I further direct the Attorney General and the Secretary of Homeland Security, in consultation with any other agency head, to take all appropriate action to review Krebs’ activities as a Government employee, including his leadership of CISA. This review should identify any instances where Krebs’ conduct appears to have been contrary to suitability standards for Federal employees, involved the unauthorized dissemination of classified information, or contrary to the purposes and policies identified in Executive Order 14149 of January 20, 2025 (Restoring Freedom of Speech and Ending Federal Censorship).” I presume “all appropriate action” includes criminal investigations and prosecutions.

This represents a reckless and perilous escalation of the use of the Department of Justice and other federal law enforcement agencies to punish those that Trump deems disloyal. Call, write, email your representatives. Write the Supreme Court Justices, let them know your thoughts.

 

“Hands Off” Louisa, Virginia Rally

Hands Off Signs

As part of nation-wide Hands Off protests and rallies, residents of Louisa, Virginia, assembled at the Court House steps this Saturday to add their voices to a growing chorus across America, and the world, excoriating Trump’s attacks on democracy.

Organized by the Louisa County Democratic Party, the rally was one of the largest gatherings, as I understand it, in memory. The diverse and enthusiastic participants focused on wide ranging issues: Constitutional rights, Education, Healthcare, Human and Civil Rights, Immigration, Justice, LGBTQ rights, Social Security, and Veteran Services. This wasn’t a one issue rally.

Boos and Jeers for Trump

Speeches, songs, and chants filled the Court Houses front steps from noon to two. Homemade signs expressed patriotism and anger. A number of speakers derided Trump’s attacks on democracy and also on our congressional district’s representative John McGuire (R) lack of honesty and integrity in the face of constituent questions.

A song or two
A Louisa Veteran

Speakers repeatedly called to protect social security, medicare, and medicaid –which assists Americas most vulnerable populations — from being cut to fund trillions in taxes cuts for the millionaire class. Boos and catcalls followed mentions of Trump’s tariffs. One speaker addressed the serious threats to veterans and their health services because of massive layoffs and program cuts at the Department of Veterans Affairs. Trump, Musk, and McGuire the villains of the day.

A number of participants volunteered to speak to the assembled crowd. One told of his still living mom’s experiences in Nazi occupied France — she was 11 when they invaded — and her fear that America is heading towards fascism. I can relate to that as my mom and her family lived under Nazis occupation as well. She sees parallels today.

Tom’s Report on the State of America’s Democratic Health

As of April 4, 2025

Weekly Summary of Democratic Backsliding and Erosion

Trump’s pace has slowed but the damage to liberal democracy continues to accumulate, like DDT did in Bald Eagles once.  I mention the tariffs now, not because they are a backsliding of liberal democracy, but as they fail and economic chaos engulfs us, Trump will become more erratic and authoritarian thus accelerating the erosion of democratic values and norms.   

I would also be wary of federal government economic data.  The Departments that report the data, and offices that compile economic and labor data sets, are firmly in Trump’s hand.  Any bad economic data, I fear will be subjected to Trump’s SHARPIE statistical methodology.   

On the positive side, the lower courts for the most part are holding firm. There is the possibility that the judge overseeing the Venezuelan deportation case will hold the Trump administration in contempt this coming week. Stay tuned. Appeal Courts also seem leery of the constitutionality of many of Trump’s executive orders. As a reminder, written arguments for sustaining a pause on Trump’s Birthright citizenship order are due soon.

Below is this week’s summary.  To see the cumulative backsliding list click the benchmark or menu link above.

Diagnosis: Critical.  

Prognosis: Uncertain

Military Loyalty Tests

Trump fires General Timothy Haugh and Wendy Noble, Chief and Deputy Chief of the National Security Agency, America’s critical signals intelligence agency. As a reminder, the NSA is forbidden by law from technical eaves dropping on American citizens.

They were fired at the request of right-wing pundit Laura Loomer for not being sufficiently ‘loyal’ to Trump: Loomer posted on X they were fired for being disloyal to Trump.  Trump in a statement on AF1 heading to Florida, stated people will be fired because we don’t like them or “people that may have loyalties to someone else.”  As the robot in the mid-60s ‘Lost in Space’ TV used to sa, with arms flailing about: “Danger, Danger, Will Robinson.”

These firings come after the firing of several National Security Council Staff earlier in the week, also worryingly at the behest of Laura Loomer.  Press reports indicate Haugh testified in a closed hearing recently and was asked about the Signal scandal.  

Whether the President was angry at Haugh for not giving the party line regarding Signal is unknown but the most likely cause for the firings.  Nonetheless, Trump may have been looking for a reason to fire Haugh and Noble.  Not saying Trump ordered Haugh and Noble to eaves drop on American politicians and others, but that option certainly is a possibility given the rogue nature of these first months of his administration. Frankly, I ask why and how a right-wing pundit with no security clearances may have knowledge of Haugh’s closed door testimony to the Senate. And even more worrisome, why the hell is Trump having sensitive national security discussions with her.

Continued Human and Civil Rights Violations

ICE admits wrongfully detaining Maryland man, says they can’t return him to US from El Salvador prison. Calling it an “administrative error.” Worse, they say they can’t get him back. This man from Maryland — married to an American, and father of a 5-year-old autistic child — was rounded up as part of the Trump’s press event, AKA the mass deportation of Venezuelan gang members.  He was deported back to El Salvador, a country he fled because of gang threats without due process.

Rise of the Government Informer Class

Vigilante surveillance of pro-Palestinian activists on university campus(es).  Pro-Israeli activists are using AI facial recognition to identify and report pro -Palestinian activists/protestors to ICE for deportation, per NBC reporting.  The AI facial recognition was developed for this purpose.  A far-right group — Betar USA –claimed credit for one arrest, per WGBH reporting.

Acts of Cowardice Continue

In an act cowardice and self-censorship, the White House Correspondents Association cancelled comedian Amber Ruffin’s appearance at the White House Correspondent’s Dinner, stating that they had “unanimously decided we are no longer featuring a comedic performance this year.”  This ends a 42-year history.

To avoid executive orders sanctioning them, several more law firms reached agreements with the White House, to include the law firm Wilkie Farr and Gallagher that Kamal Harris’s husband, Doug Emhoff, works for. They offered up $100 million in pro bono work for Trump priorities to avoid possible executive order sanctions.  Through these dragnets, Trump has almost garnered a quarter billion dollars in pro bono legal work for Trump initiatives.

New Punitive Investigations

The FCC began an investigation into ABC’s DEI practices. ABC is part of Disney.

Destroying Civil Society and a blow to Labor Unions

Tens of thousands of additional federal employee layoffs announced.  In addition, Trump bans federal government unions collectively bargaining ability. Agencies included in the ban are the Departments of State, Defense, Veterans Affairs, Energy, Health and Human Services, Treasury, Justice and Commerce and the part of Homeland Security responsible for border security. Police and firefighters will continue to collectively bargain. Another blow to labor unions.

Per CBS, senior officials at NIH terminated or reassigned:  “Senior leaders at multiple agencies were removed, multiple health officials said, including Dr. Jeanne Marrazzo. Marrazzo replaced Dr. Anthony Fauci as the head of the National Institute of Allergy and Infectious Diseases. At the Centers for Disease Control and Prevention, senior officials put on leave and reassigned to the Indian Health Service include Dr. Karen Hacker, head of the agency’s chronic disease teams, Kayla Laserson, head of its global health center and Dr. Jonathan Mermin, director of the CDC’s STD and HIV/AIDS center.”

In a new executive order, President Trump targeted the Institute of Museum and Library Services (IMLS), the federal agency charged with distributing Congressionally approved funds to state libraries and to library, museum, and archives program grant recipients.  The National Endowment for the arts was also targeted for layoffs and funding cuts.

“Vexation:” A Short History of Habeas Corpus in America

The Scene, Act 1

Imagine driving down Fredericks Hall Road in the early hours heading to work, sipping coffee, a black suburban following too close for comfort. Minutes later a sheriff’s deputy car pulls in between you and the suburban, turns on his or her emergency lights.  You pull over into the B&L Mart parking lot, the suburban following the deputy’s car into the lot.  

Out jump agents in camouflage vests, long guns at the ready.  They order you out of the car, pushing you to the ground, cuffing you, your body violated in every sense as they search you.  Before you know it your whisked away in an unmarked van to a non-descript detention center.  Your “Why am I being arrested?” protests ignored. Demands for a lawyers rebuffed. No Miranda warnings. Requests to make phone calls denied.  Within hours a flight, then a prison in a foreign country.

At best this sounds like a screenplay for a cheap, low budget film.  At worst, a nightmare.  Unfortunately, it’s the latter.  The Trump administration has used similar tactics repeatedly over several weeks.  One Maryland man, who was in the U.S. on protected status, was grabbed from the streets, detained, denied due process, and ended up in an El Salvadoran maximum security prison.  The government admitted later he was detained because of an “administrative error,” adding it was powerless to have him returned to the U.S. and his American wife and 5-year-old autistic child.   Several other persons legally in the U.S. have also been individually detained, imprisoned, and marked for deportation without due process.  

In a larger multi-state operation, hundreds of persons were detained and deported during arrests allegedly targeting Venezuelan gang members when Trump invoked the Alien Enemies Act of 1798.  Despite a federal judge’s order to stop the deportations pending court hearings, even ordering the return of flights in progress, the government willfully ignored the order and let the deportations proceed apace, citing that some of the planes were over international waters and therefore beyond their jurisdiction to recall. 

Newsfeeds showed the deportees led off the planes in shackles, moved from point to point by soldiers forcibly doubling them over, heads shaved for TV crew consumption.  A chilling display of dehumanization reminiscent of Nazi deathcamps.  

At the core of these detentions is the secretive nature of the arrests and reluctance and outright vexatious refusal to respond to federal judges’ orders to produce the body in court: The Writ of Habeas Corpus.

Habeas Corpus

Habeas Corpus’s roots go back to Anglo-Saxon times, evolving after the Norman Invasion in 1066, enshrined in the 39th clause of the Magna Carta in the 13th century, and in 1679, put into English law with the Habeas Corpus Act.  The reason for the 1679 Act, from what I can gather from its text, is that Sheriffs and others were claiming not to have received or misplaced writs of Habeas Corpus, causing “great delayes” and “long detaining’s in Prison….to their great charge and vexation.”   Sound familiar to Trump’s government lawyers?

You must put the 1679 Act within the 17th century’s context of the power politics between King and Parliament in England, eventually being settled as part of the Glorious Revolution of 1688/89 and the birth of the English Bill of Rights.  One mustn’t lose one’s head over this history (a little pun off the top of my head), but it is worth recalling.

Americans thought it such a great idea they put it in our Constitution, not once by twice.  It can only be suspended in cases of invasion or rebellion.   The 1789 legislative act creating America’s judicial system gave federal judges the right to issue writs of Habeas Corpus but limited to federal matters.  This power to issue Habeas Corpus writs was expanded after the Civil War in 1867, to include State detentions.  

Rebellion

At the outset of the Civil War, President Lincoln suspended Habeas Corpus in certain regions in April 1861. After the arrest of Marylander John Merryman, who was spirited off to a military fort, Supreme Court Chief Justice Roger Taney (of Dred Scott infamy) — who also oversaw Maryland’s federal circuit court – issued a writ of Habeas Corpus, demanding Merryman be brought before a judge.  Taney argued that only Congress can suspend Habeas Corpus, not the President.  Lincoln refused.

Lincoln’s Proclamation 94, issued in 1862, further expanded the geographic scope of the suspension of Habeas Corpus.  Congress debated the issue of whether the president or congress can suspend Habeas Corpus, as the Constitution is silent on this matter, but came to no definitive conclusion.  In 1863, nonetheless, Congress passed an Act Suspending Habeas Corpus to give Lincoln’s acts legal cover.  Lincoln signed the bill.

Alien Enemies Act 1798

Unfortunately, the Alien Enemies Act has been used to short circuit Habeas Corpus.  The Act has several parts, it includes a declaration of war, or invasion or predatory incursion by a foreign nation or government.  Only then can aliens of these invading nations be rounded up, or as the act states, “shall be liable to be apprehended, restrained, secured and removed as enemy aliens.”  The west coast roundup of Japanese aliens and citizens of Japanese ancestry and their interment in prison camps during the Second World War is one example.  

The round up of alleged Venezuelan gang members under the Alien Enemies Act is absurd.    The gang is not a nation state, it is not part of an invading army or force, and a state of war between the U.S. and Venezuela does not exist.  And by the way, only Congress can declare war.

The War Mindset

This recent short circuiting of Habeas Corpus reveals the mindset of Trump and his administration.  They are at war with parts of America.  And they are using war-time emergency powers such as the Alien Enemies Act to dilute and nullify the Constitution.   Trump is on a war footing where no war exists, and Americans need to take notice.  If you think he will stop at non-citizens or legal permanent residents, I would think long and hard about that proposition.  Just as insidious are those lining up to inform on folks.  Are we heading to a police state?

Think about our neighbors.  Migrants live and work in our community.  Their kids go to our schools. They are a vibrant part of our community and economy.  They build and repair homes, own businesses such as restaurants, gas stations, construction and landscape companies. They pay taxes and shop at local stores. They have the same right to the constitutional protections that we enjoy from unreasonable search and seizure, due process, their day in court.   They should not have to live in fear of disappearing from Fredricks Hall Road and ending up in an El Salvadoran maximum security prison.

Lastly, what can we do?  We have agency, so talk to your representative and express your concerns.  Stress the need for legislative reform.  Ask them to introduce reform bills.  I would start with repealing the Alien Enemies Act and clarify through legislative action who can suspend Habeas Corpus, Congress or the President.  Talk to your neighbors and friends.  Let them know what is going on and what is at stake.

For those on the other side of the aisle who think that Trump is doing is great, I ask you to think down the road.  Restraining a president with expanded Kingly powers will be like holding a wolf by the ears.  The next president may not like you. I hope your Spanish is good.