Tag: democracy

The Rule of Law:   Are Trump’s Executive Orders the New Bills of Attainder?

You may have noticed the term ‘Bill of Attainder’ recently in newspaper articles or streaming news services.  

A federal district Judge this week imposed a temporary restraining order on Trump’s Executive Order punishing a law firm that represents Democratic Party clients in general, and former special counsel Jack Smith in particular.  The Executive Order barred the firm, Perkins Cole, from federal contracts, stripped security clearances, and prohibited federal employees from retaining the firm for legal services.  The judge compared the Executive Order to a Bill of Attainder, writing that the Order ‘sent chills down her spine.’  Two things.  First, thank God someone has a spine in Washington DC, and two, it should send chills down everyone’s spines.

So, what is a Bill of Attainder?  Like many things in American Constitutional law, it has its roots in England.  William Blackstone’s mid-18th century “Commentaries on the Laws of England” provides the go to legal description of a Bill of Attainder.  Basically, Parliament could sentence a person to death, without a trial, through legislative fiat. Normally, for treasonous acts.  Execution for treason was a ritual in England and other monarchies.  After burning at the stake was banned in late 18th century, hanging, disembowelment while still alive, beheading  and quartering, became standard in England. Parliament could also seize property or banish a person from England simply through legislative acts, sometimes called Bills of Pain or Penalties.  America’s founders thought this a bad idea.  

The Constitution specifically prohibits Bills of Attainder.  At the Constitutional Convention, on Aug 22, delegates Elbridge Gerry of Massachusetts and James McHenry or Maryland introduced the clause “The Legislature shall pass no Bill of Attainder nor any ex post facto law.”  There was practically no debate, with most of the discussion on whether the latter part of the clause was necessary.  Which suggests they thought it not controversial to ban Bills of Attainder.  Nonetheless, coming very late in the convention, and before air conditioning, I imagine the urge to debate was wanning.  That said, many of the delegates were very familiar with Blackstone’s commentaries and some even had a copy in their personal library and thought the ban necessary.

In Article 1, which enumerates the powers of Congress, section 9, the Constitution states, “No Bill of Attainder or ex post facto Law shall be passed.  In section 10, States were prohibited from enacting Bills of Attainder as well. While the proscriptions apply to Congress and State legislative bodies, it seems that the intent of the ban – and the spirit of the law — would also apply to Executive Orders.  An Executive Order, according the Chief Information Officers Council ( CIO.gov),  has, and I quote, “the force of law.”

I am not a lawyer or Constitutional scholar, but it seems to me that President Trump has weaponized Executive Orders to punish and impose pain on his political and culture war enemies.  Trump’s Bills of Pain and Punishment.

For instance, the creation of DOGE, an extra-legal government agency, to target and eliminate congressionally mandated and funded government programs.  Basically, hanging, gutting, and quartering the career civil service along with executive department and independent agencies without meaningful congressional oversight, public comment, or legal restraint. 

Another example, is the order to ban birthright citizenship through executive order: “Protecting the Meaning and Value of American Citizenship.”  An Order that blatantly lied about the Supreme Court’s century old interpretation of the 14th Amendment and birthright citizenship.  More on that in a forthcoming Blog on birthright citizenship. That order is motivated, it appears, by racial animus and is meant to punish the current wave of immigrants to America — which are overwhelmingly brown or black from, as Trump would say, “Shit Hole countries” — by making their children born in America stateless.

And finally, the Executive Order to “Protect the US from Foreign Terrorist and Other National Security or Public Safety Threats,” was used recently as a pre textual basis to detain a permanent legal resident and Palestinian activist and Columbia graduate Mahmoud Khalil as a national security risk. After his arrest he was sent to an immigration detention facility hundreds of miles away in Louisiana, even barring him from access to lawyers.  A judge stayed his deportation temporarily. That should scare the crap out of everyone.

Thankfully the courts have countered some of these executive orders, but will the Supreme Court sustain these lower court rulings.  That remains uncertain, even birthright citizenship is in jeopardy, I believe, given the present makeup of the Supreme Court.  If the Supreme Court decides to take up the Birthright case, and not let lower court rulings stand, that should send shivers of fear down every American’s spine.   

Lifeboat:  A recap of John McGuire’s call-in Town Hall

Representative John McGuire of Virginia’s 5th Congressional District held a call-in town hall meeting recently.  I don’t know how many folks attended the town hall, but I do know that when folks were selected to ask McGuire questions the majority queried him about Medicaid cuts and DOGE. Funny, no talks of eggs.

McGuire started the town hall by asking listeners to participate in a poll.  The first question was, “do they want to root out waste, fraud, and abuse? “ That’s like asking Medieval folks if they want to root out Black Death, the plague.  Of course they did.  It’s the methodology that they had quibbles over.  In 17th century England, if a household member got plague, the whole household was locked inside the house for 30 or 45 days, a guard posted outside.  That quarantine was extended as other household members sickened and died.  Normally, everyone perished.  Sounds a bit like DOGE’s methodology regarding USAID and lifesaving anti-viral drugs for millions of Africans. 

But back to the town hall.  The first question McGuire was asked sounded the alarm about the proposed $880 billion dollar cut to government agencies overseen by the energy and commerce committee.  This would entail massive cuts to Medicaid, the caller thought.  McGuire’s response was to happily, almost joyfully, point out that Medicaid was not mentioned once in the proposed budget blueprint.  Duh!  The New York Times reported that if the committee cut all other non-safety net programs under their oversight, they would still have to eliminate an additional $600 billion in funding.  That means Medicaid would be hit….hard.

Another caller, a preacher, pointed out that 24 percent of his district receives Medicaid.   I asked myself, did it ever dawn on McGuire to ask himself, “why do so many folks who work full-time jobs in my district can’t afford medical insurance or care? “ Piss poor wages dude!  Nationwide, over 64 percent of Medicaid recipients work.  In Louisa County, 17 percent receive Medicaid, and this is in a county where unemployment is just a smidge over 2 percent. According to Virginia law, if Medicaid expansion funding from the Federal government drops to a certain level, the program is abandoned.  Yes, abandoned.  That would mean 600,000 Virginians would lose access to health care, many of whom are kids.  Later callers, it was clear, weren’t buying McGuire’s Trumpian responses.

The same went for DOGE.  Near universal condemnation of DOGE’s chainsaw approach, many pointing out its cold-heartedness.  One caller, from the Charlottesville area, said folks in her organization – which she specified — were worried about the haphazard cuts and potential cuts to come.  In perhaps a Freudian slip, McGuire spoke of her position and organization in the past tense.   Which he corrected quickly.  I am sure that that slip was noted by listeners.

During overwhelmingly negative comments and questions regarding DOGE’s incompetence and draconian Medicaid cuts, McGuire’s aid interjected and offered an email question.  The email question was quite flattering of McGuire.  Really, were not dumb!

Overall, McGuire got an earful, but I don’t think he listened.  Too often he used rehearsed and prepared talking points (you heard papers shuffling) instead of genuine concern.  Given the tenure of other town halls I seen or heard about, I was surprised at how calm the questioners were.  Very civil, very polite, but direct as well.  McGuire was civil himself, but too often resorting to the same phrase, saying, ‘I still love you even though we disagree.’  

I think McGuire forgot a cardinal rule in politics:  He forgot who he works for.  We expect our politicians to omit and lie and obfuscate, but we don’t expect them to work against our interests.  It was obvious he works for Trump and not us.  Ben Franklin at the Constitutional Convention in Philadelphia in 1787 said it best I think:  “In free governments, the rulers are the servants, and the people their superiors and sovereigns.”

You may be wondering why Lifeboat” is in the title of this essay. I remember as a kid watching a black and white war movie telling the story of the survivors of a torpedoed merchant ship.  The drama takes place in the overcrowded lifeboat: too many people, not enough space, too little food or water.  As time passed people died or were killed.  I realized later with age and little bit of wisdom, that the lifeboat was a parable about class and society.  The passengers represented a spectrum of society:  a wealthy socialite, working class ship hands, upper class passengers, the young and elderly, a vulnerable woman with a dead child, an enemy portrayed by the German U-boat captain. Conflicts ensued as resources, and hope, dwindled.  Winners and losers.  Everyone dead or morally tainted.

That’s the paradigm that sticks in my mind when I think of politics in America today.  America the Lifeboat.  Billions, tens of billions in cuts to Medicaid and other safety-net programs — mostly to working class folks – to pay for $4 trillion in tax cuts, the bulk of the dollars going to the wealthiest Americans.   I think that’s not the ‘golden age’ most folks who voted for Trump envisioned or want.

Golden, Gilded, or Gelded: America, Tech Bros, and the Age of Unchecked Constitutional Abuses

Trump promised a golden age, some see a gilded age, I see a gelded age.   That’s not to say that money doesn’t talk, it always has in politics, but I don’t see a plutocracy of tech bros calling the shots in Washington.  Even though Musk appeared to secure a co-presidency through a $270ish million-dollar donation to Trump, he will soon learn that a fool and his money are soon parted.  Anyway, technically, a billionaire occupies the White House, one who used his first term to increase his wealth and does not seem averse to using his second term to accumulate greater wealth and power.  He is a profiteer at heart, while proclaiming to be a disruptor of the Washington swamp. 

The tech bros, while appearing to leverage power through wealth much like Gilded Age titans of industry, they don’t leverage much if any real power.  A ‘like,’ a ‘post,’ a ‘search’ are ephemeral.  Except for Musk, they really don’t make anything of tactile value.  They do control the flow of information, however, and that’s what Trump wants access to.  He wants to coopt the tech bros to obliterate the difference between fact and fiction, truth and falsehood for the purpose of eroding democracy.  That’s the irony, using tech to control and manipulate the lifeblood of democracy:  An informed and educated populace.

Jefferson wrote it best in a letter to Judge William Johnson in June 1823 some two hundred years ago:  “I know no safe depository of the ultimate powers of society but the peoples themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education.  This is the true corrective of abuses of constitutional power.”

The theater that was the inauguration said much about how Trump sees the world and the tech bros.  Those that read tea leaves saw plutocracy, a new Gilded Age, pointing to Jeff Bezos (Amazon), Mark Zuckerberg (Meta), Sundar Pichai (Google), and Elon Musk (Tesla, Starlink, X, SpaceX) sitting behind Trump.  With Musk closest to the Trump of the four.  

What I saw was a modern version of a Roman Triumph. Way back when Rome ruled much of Europe, when a Roman general won a significant victory he was accorded a paraded through the streets of Rome.   Behind the chariot carrying the general were his warrior prisoners, marking their subjugation,  and carts of gold and silver or other tributes.  The Tech Bros, provided Trump million-dollar donations – the modern American version of tribute – to fund his inauguration.  To me, the four weren’t there as honored guests but were Trump’s display of defeated enemies.  Fortunately for the Tech Bros, they did not suffer the same fate as the defeated after the end of the procession.

How does Trump coopt them?  Simple:  Greed and fear.  Greed:  They all have multibillion dollar businesses to protect and fear Trump because he has the power to cancel their billion-dollar government contracts.  Amazon’s cloud computing contracts, for example, or, for Musk, other government investments.  Musk benefited from $38 billion in federal investments.  Zuckerberg’s fears are more focused on DOJ civil litigation threats, I think.  Fear:  They know Trump’s penchant for vengeance.  With a phone call Trump’s regulatory agencies can investigate.  Trump’s IRS can audit.  Trump’s DOJ can threaten both civil and criminal investigations, for instance, target Google’s internet search monopoly.

They all reacted differently.  Musk became the collaborator, Bezos the stooge, Zuckerberg a wet piece of toast, Pichai seems to have gone deep and silent after changing Gulf of Mexico to Gulf of America.    

Bezos’ behavior is comedic.  Changing and limiting the opinion section of the Washington Post, the newspaper he owns.  Recall, he pulled the Post’s endorsement of Harris before the election.  Additionally, Amazon Prime reportedly paid Melania Trump $40 million for a biopic.  More recently, Amazon Prime began streaming Trump’s reality TV show, The Apprentice.  Zuckerberg, jettisoned content moderation and fired its fact checkers and quite publicly proclaiming the end of DEI at Meta.  

Bezos, Pichai, Musk, and Zuckerberg are not part of a new Gilded Age but are part of a new Gelded Age.  An Age marked by dissolving the lines between fact and fiction, truth and falsehood so that abuses of constitutional power are unchecked.