Today I’ll answer questions that I received through the Ask Teri tab.
Q: What kind of judicial and legal reforms would you pose so that no executive administration has the capacity to commit malfeasance as broadly as Trump has. I’m thinking of his use of Acting Secretaries and using agencies like the EPS to work against its mission, etc. thanks for your calm voice.
A lot is being written about how to strengthen our battered institutions. I plan to devote full blog posts to particular reforms that can help.
But here’s the thing about democracy: At any given time, a majority of voters can decide it’s time to end democracy.
In 2016, Trump ran as a “disruptor” and norm breaker. He promised to dismantle agencies, do away with regulations. People who voted for him didn’t care if he lied and cheated and broke rules. That’s what they wanted.
Law and institutions (no matter how well crafted) will not hold up if a president, backed up by a major party and a majority of voters, decides not to honor them. Notice the part about the “majority of voters.” Trump is not backed by a majority of voters. In the end, that’s why he’ll fail.
A lot of people who voted for Trump didn’t really understand what they were voting for. Polls show that many of them had immediate buyer’s remorse. Notice how the green and orange switch positions about a month after Trump’s inauguration (from 538):
We have learned a lot of lessons from 2016 and the past four years. The question is whether we will be able to retain and act on those lessons.
The best way to prevent another destructive executive administration is for voters to make sure another destroyer doesn’t get into the White House. I will do my part by continuing to write books and articles and by continuing my volunteer legal work in voter protection.
What will you do?
Q: How much damage can a lame duck president and senate do?
We will soon find out.
This is what is known as trading up for a better problem. I’d rather have the problem of what the lame duck session will look like, than the problem of the GOP winning the 2020 election.
Q: The Trump administration repeatedly disobeys the Hatch Act and nothing happens. Are such laws basically symbolic?
The Hatch Act (enacted in 1939) bars federal employees from using the power of their official positions to push partisan political outcomes. Career government employees have faced serious consequences like firing or suspension without pay for violations of the law.
The Trump administration repeatedly violates the Hatch Act.
When Trump leaves office, Congress can empower an agency or the OSC to investigate, but because the president is the head of the branch of government responsible for enforcing the laws, we’re back to Question #1: What if a major political party shields a president who refuses to follow and enforce laws?
The Constitution has a remedy for a lawbreaking president: Impeachment and removal. This doesn’t work if the Senate shields the president.
The solution is not to elect lawbreaking officials. If we elect honorable people, they will behave honorably and uphold the laws.
Sometimes things are so simple it’s just annoying. Right?
If enough people want to dismantle democracy, laws won’t stop them, and as I argued yesterday, the threat of punishment won’t deter them.
Q: Given Trump’s explicitly stated intention to have the Supreme Court “decide on ballots” and his designation of regions as “anarchist designations” the prospect of Trump declaring some votes disqualified seems probable. The mad rush to confirm ACB before Election Day supports this scenario. How will the Supreme Court rule and why?
Trump can’t just ask the Supreme Court to “decide the ballots.”
To get into court, a plaintiff must file a complaint, which states a cause of action. A cause of action must allege a violation of law.
“There is a problem with the ballots” is not a cause of action.
Each state manages its own election, so he would have to begin by bringing lawsuits in each state where he wants to contest the vote. He needs a legal cause of action and evidence.
The best way to prevent a legal nightmare is to make sure that the wins are decisive. If the election comes down to a few thousand votes in one state, yes, we will have a problem. If Biden wins by overwhelming majorities in enough states to give him 270 electoral votes, the Trump Administration will soon be history.
Supreme Court is not going to overturn a clear victory for Biden and install Trump. To do this would be for the Supreme Court to literally take it upon itself to end American democracy. Even if the Supreme Court did this (and there is a greater chance of a meteor hitting the earth and destroying all life on the planet) the people would never stand for it. Instead of installing Trump in the White House, the Supreme Court would throw the nation into chaos and violence.
Stop worrying about these things.
Worry that not enough people will vote for Biden. The biggest threat to democracy is the fact that, with everything we know about Trump, he is still likely to receive about 65 million votes in this election.
Q: What can be done about Amy Coney Barrett lying under oath to Mr. Leahy on Day 2 of her confirmation hearing?
The idea is that the Senators shouldn’t confirm a nominee who lies under oath. Unfortunately, as we’ve seen, something like perjury will not prevent GOP Senators from voting to confirm Barrett. GOP has proven over and over that it will overlook illegal behavior if it means retaining power.
There is an impeachment process for Supreme Court justices, but it’s the same process as impeaching and removing a president: The House investigates and impeaches, and then the Senate holds a trial and votes. A 2/3 vote from the Senate is required for removal, so as a practical matter, removal of a Supreme Court justice by this process isn’t going to happen.
Personally I haven’t been worried about Amy Barrett, even though she’s obviously a nightmare.
My focus has been on the Senate races. If the Democrats win the Senate and White House (and keep the House) it will be easy to reverse what has essentially been right wing court packing.
Add more justices. I wrote about that here.
Q: What will it take to remove citizens United as well as bring more truth to information sources?
Because Citizens United was a Supreme Court decision based on constitutional grounds (First Amendment) there are only two ways to reverse it: Amend the Constitution or appoint justices who will overturn the decision. If Amy Barrett is confirmed, and the Democrats win the White House and Senate, they will certainly add more justices, thereby reclaiming the Court from extremists.
When the Supreme Court’s decisions are not based on a reading of the Constitution and is instead an interpretation of a statute, the remedy is simpler: Congress passes a law.
Q: What is your take on the legal standing of Trump’s tweets? It rather sounds as though things are coming to a head, so to speak. If they are considered legitimate presidential orders, how will this affect the myriad FOIA requests that are floating around out there? Will it be fun, or more of the same old boring nothing-burger?
The idea that a president can issue orders by Tweet is ridiculous and smacks of authoritarianism. Kings rule by decree.
Right now, a court is calling Trump’s bluff. On October 6, Trump tweeted:
Immediately Buzzfeed rushed to court to demand the unredacted Mueller report. Trump’s administration is currently scrambling to persuade the judge to disregard Trump’s tweets without actually saying that nobody can believe anything Trump tweets.
In fact, today, Oct. 20, White House Chief of Staff Mark Meadows offered a sworn statement that Trump didn’t mean what he said. I suspect that the court will find that Tweets are not orders, but in this case, it would be fun if the court ordered the unredacted Mueller report to be published.
Again, the solution is to elect sane presidents who do not govern via Tweet.
Amy Coney Barrett is being referred to as a constitutional originalist. How do “originalist” judges view the Amendments to the constitution? Wouldn’t they see them as a judicial overreach?
This is such a big question, I intend to devote a full blog post to it:
I’ll also keep working through the questions in future posts.
Also, I think I will keep the comments on. You all seem well behaved (unlike some Twitter people). I enjoy reading the responses, and you all might, too.
