Monday, September 30, 2019

Weirdness Prevails: Trump and His Critics

Weirdness Prevails: Trump and His Critics:
Peter Schultz

            Things are really getting weird in Trumpland because those who style themselves “progressives” are attacking Trump for undermining the rule of law. Why is this weird? Because progressivism and its originators – T. Roosevelt, Woodrow Wilson, and FDR – deliberately jettisoned the rule of law as inadequate, pre-modern, and unable to support the kind of active, interventionist government needed in the modern world. The Progressives embraced three kinds of power, military power, bureaucratic power, and presidential power. And they recognized that by doing so, they were “modifying,” even undermining the rule of law.

            Central to Teddy Roosevelt’s “stewardship theory” of presidential power, as well as FDR’s New Deal, was the creation of a new kind of politics, the kind that transcended legal concepts and law itself. In a real sense, this is what the “modern presidency” was – and is – all about, liberating presidents from the confines of the law, whether that law is statutory or constitutional.

            Military power is, obviously, beyond the rule of law. Making war puts a nation beyond, well beyond the rule of law, which is why the Constitution allows the government to suspend the writ of habeas corpus in time of war. As Justice Jackson said in his concurring opinion in Korematsu, the case where the Supreme Court upheld FDR’s decision to authorize the “internment” of all persons of Japanese descent, including natural born American citizens, presidents are obligated in time of war to be super vigilant in protecting the nation and, hence, were not bound by legal principles, by the rule of law.

            Drone assassinations, including those of American citizens, torture, Guantanamo, in fact the entire war on terror so readily embraced by the Bush administration and the American people, make a mockery of the rule of law. This is what Cheney meant when he said we had to go to “the dark side” after 9/11. Of course, we had already gone to the dark side in Korea, Vietnam, Cuba, Guatemala, Chile, and Iran, long before the war on terror was declared.

            Embracing bureaucracy, as the Progressives openly and eagerly did, also undermines the rule of law. Bureaucratic government, bureaucratic institutions are alternatives to the rule of law, which FDR knew and which was central to his New Deal. The rejection of the rule of law was then close to the heart of the New Deal and was what helped make that deal new. The old deal was the Constitution and especially its separation of powers and the rule of law. Bureaucracies are not bound by legal reasoning, as reflected by the enormous discretion they are entrusted with. For the Progressives, such discretion was seen as indispensable for what they called “good government,” that is, efficient, flexible, but not law bound government.

            And on top of this, the Progressives embraced presidential power, both its bureaucratic and its “monarchical” characteristics, amounting to a wholesale rejection of the rule of law. Teddy Roosevelt’s embrace of presidential power, his “stewardship theory,” encouraged presidents to do anything they thought necessary for the well-being of the nation, including confiscating private property or, a la FDR, “interning” persons, even American citizens, who had done nothing illegal. It is only a short step from such a theory of presidential power to “interning” even children separated from their parents. And it is no step at all to creating a “Security Index,” a la J. Edgar Hoover, composed of the names of persons to be “interned” whenever the government decided it was necessary to do so. This makes a mockery of the claim that the U.S. is “a nation of laws.”

            So, if Trump were guilty of undermining the rule of law as claimed, that would make him just like the Progressives. Which of course makes a mockery of those progressives who argue that Trump should be impeached for doing so because, once Trump is gone, these same people will embrace any president who continues and even expands the war on terror, who continues and even fortifies the “imperial presidency,” just like Reagan did and just like Bush Jr. did. The charges against Trump for undermining the rule of law are, of course, bogus coming from those who call themselves “progressives.” Those making the charges are being hypocritical, dishonest, and disingenuous.

            And insofar as this is true, the attempt to impeach Trump looks more and more like a good, old-fashioned coup, dressed up to look like something else. But as the old expression has it, even if you put make-up, earrings, and a dress on a pig, it’s still a pig. It’s hard to hide a coup. Just ask Bill Clinton.

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