Monthly Archives: April 2017

Trump, Congress, the Courts, and the Limits of ‘I’m Gonna…’

We all know that Trump said he was “gonna” do this and “gonna” do that all through the campaign (when he may or may not have had any expectations of winning).  But when it comes to government spending, all he can actually do is ask Congress to pass this or that law, and when it comes to his executive orders, he hasn’t had very much luck with the federal courts letting them stand.

His revised travel ban is being blocked, pending full hearings, and now a federal court in San Francisco has issued a preliminary injunction against his move to punish sanctuary cities by holding back federal funding (Politico article, April 25, 2017).

His tax plan promises to be interesting, because he’s hoping to win over some Democrats to it which of course is likely to come at the expense the support of the right-wing Freedom Caucus–and good luck getting the Democrats on board (Politico article, April 25, 2017).

In any case, though, while you learn about the limits of presidential power academically, from reading the textbook and listening to me yammer on, our president is learning the limits of presidential power experientially.

(While you’re on the OpenLab page, you should also check the news feeds at the right for a lot more information on what’s going on .)

Trump’s White Nationalist Supporters and the Limits of Loyalty

Matthew Heimbach isn’t just any casual Trump supporter.  He’s of the white nationalist variety, and he’s currently on trial in a civil suit for assaulting an African American anti-Trump protester.

Now if he’s so loyal to Trump and to the cause that he thinks Trump stands for, you’d expect him to be willing to take a hit for the chief, for the good of the white-nationalist America that he so ardently loves.  Guess again!  He’s making clear that, as far as he’s concerned, he did what Trump told him to do, and if there’s any liability to be had, it’s Trump and the Trump campaign they should go after.

Poor Trump.  At least his children love him.  (I’m not so sure about his wife at this point, but that’s another story.)

Politico story, April 17, 2017

Political Parties and Congressional Elections

Esteemed Associates, I want to open this post by stressing the importance of a principle that the average American does not comprehend, but that I want all of you to comprehend from having been in my American Government classes:  elections for Congress are every bit as important as those for the presidency, and in the context of elections for Congress, political parties matter a great deal, because the most decisive factor determining what legislation gets passed in Congress is not the personalities of the individuals, or even their policy preferences, but rather, which party holds the majority in each chamber.  And with that in mind, here’s another important point: the state legislatures have a lot of control over the drawing of the congressional districts. For that reason, elections to the state legislature are on that same level of importance, and political parties matter there too.  One of the learning objectives of my Government classes is that, if students have ever before thought that congressional and state legislative elections were of inferior importance to presidential elections, students won’t think that from now on.

With that in mind, the Democrats are hoping that Trump’s low approval rating will translate into a chance for them to win back not only the Senate, but the House, the latter having been a lost cause in the most recent elections.  The Democrats are hopeful even for districts that have seemed securely Republican up until now.  And the new round of congressional elections has already begun, because Trump created two vacancies in the House by appointing House members to positions in his administration: Mike Pompeo of Kansas, now the CIA director, and Tom Price of Georgia, the new Secretary of Health and Human Services.

The Kansas election has just taken place.  The Republican candidate won, but by a considerably closer margin than would have been expected before (Politico story, New York Times story, both dated April 11, 2017).  The election for the Georgia seat is still ahead (story at, April 10, 2017).

It’s usual for the president’s party to lose some number of seats in the midterm congressional elections (which in this instance are coming up in 2018); how dramatic the shift will be remains to be seen, but both parties are looking to these off-season special elections as a bellwether for how their prospects look.  As things stand now, the Republicans are still holding their ground, but not easily (further story from thehill, also April 10, and please also see the headlines on the constantly updated news feeds linked to this OpenLab site).

Wherever your own political allegiances lie, whichever party you want to be in the majority, please be aware that which party has the majority in Congress is at least as crucial to policymaking as which individual inhabits the White House.  Congressional elections are important, and in those elections, political parties are important.

Is Trump Becoming a ‘Normal’ President?

The Trump campaign was not a matter of conservative versus liberal.  Rather, from the point of view of Trump himself and his loyal supporters, it was a matter of being patriotic and being for the American people, on the one hand, and being for the sinister establishment on the other.  Trump painted complex issues in terms of that simplistic binary, and made all kinds of nonsensical promises (“I’m gonna build a wall and have Mexico pay for it,” “I’m gonna bring jobs back,” “I’m gonna put America first,” et cetera, et cetera, et cetera).

After he won, he showed every sign of acting as president the same as he had on the campaign trail, and of surrounding himself with likeminded loyalists–Steve Bannon, Michael Flynn–who would reinforce his prejudices rather than teach him anything new.  Considering that the realities of the issues are very complicated, not at all a matter of “the will of the people” versus “the establishment,” one might actually say that the real binary was that of whether Trump’s policies were going to be shaped by advisers who know what they’re talking about or by narrow-minded ideologues who don’t.

Well, to make a long story short, it appears as if the advisers who know what they’re talking about may be getting Trump’s ear more.  Bannon, after all, has been removed from the National Security Council.  I’m willing to bet that this move happened because the National Security Adviser H.R. McMaster went to Trump and said “Mr. Preisdent, you’ve got to get Bannon out of there; he doesn’t know anything about national security policy, and he’s doing nothing but getting in the way, either get him out of my way or get me out of his way.” Similar things seem to be happening in other agencies too.

That brings us to the air strike against Syria last Thursday.  Air strikes are always messy, they always kill people, and they always leave some wishing they had gone farther, but whatever you think of this one, we could have gotten it no matter who the president was.  It could well have been Hillary Clinton.  And it’s the kind of thing that mainstream, establishment advisers would advocate, as evidenced by the fact that much of the political mainstream–in both parties–has supported it.

Here are a couple of related Politico articles.  April 10, 2017    April 6, 2017



Imminent Lawless Action at a Trump Rally

According to prevailing case law, it should be remembered, the First Amendment protects the right to express opinions, including the opinion that the government should be overthrown, that violence is sometimes a good way to bring about social change, and even that it would be desirable for the president to be assassinated–as long as the opinion being expressed is sufficiently abstract and vague that it does not amount to trying to incite “imminent lawless action.”

In March of 2016, at a Trump rally in Kentucky, Trump shouted “Get ’em out! Get ’em out!” into the crowd. Right after that, supporters began roughing up the anti-Trump protesters whom he was referring to.  Those protesters are now suing Trump and his campaign for inciting violence against them.  A federal district court has just refused to dismiss the case.  One of the arguments that Trump’s lawyers made was that his words were protected by the First Amendment, but the court ruling says that no they’re not, as they can be viewed as an order for “imminent lawless action.”  Please be clear, this is not a decision on the case, merely a decision that the plaintiffs have a case and a refusal on the part of the judge to dismiss it.  Here’s that ruling.

Judicial decisions always have long lists of cited precedents. Two of the cases cited in the case as precedents came up in class in the context of Chapter 4, Civil Liberties, in the section on free speech: Brandenberg v. Ohio (1969) and Hess v. Indiana (1973). Both of those cases involved threats of lawless action, but both were sufficiently vague that the Supreme Court decided that the speech was protected under the First Amendment.  (In the Brandenberg case, a KKK leader had said that “there might have to be some revengeance taken,” and with Hess, the utterance was “we’ll take the [effing] street again.”

Several other cases involving issues of incitement to riot or threat of lawless action are cited in the case as well.  Three cases in particular stand out.  In all three of those instances, the parties claiming First Amendment rights were on the winning side, but in all three instances, the court in Kentucky has refused to go along with Trump’s contention that they provide precedents in his favor.

Bible Believers v. Wayne County, Michigan (Sixth Circuit Court of Appeals, 2015):  A group of evangelical Christians was walking around the Arab International Festival in Dearborn, Michigan, preaching to Muslims that they would be damned if they did not convert to Christianity.  This led to some bottles being thrown at them, and the sheriff’s department intervened only to chase the Bible Believers away, not to arrest anybody for violence against them.  Ultimately, the sheriff’s department demanded that the Bible Believers leave the area.  The Bible Believers sued.  They lost the case at the Federal District Court level, but the Sixth Circuit reversed it, ruling that they were within their First Amendment rights, and that although violence resulted, they were not inciting any riots with their actual words.  The fact that others find one’s words provocative does not in itself allow police to take away one’s right to speak (that is known as a “heckler’s veto”).  This is one of the precedents that Trump tried unsuccessfully to use in this Kentucky case.

NAACP v. Claiborne Hardware (Supreme Court, 1982):  The Court ruled that a black boycott of white businesses as a political protest was constitutionally protected, and that even the words by one of the NAACP leaders, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck” was protected.  But Trump’s court refused to apply that precedent to Trump’s case, because Trump’s words “Get ’em out! Get ’em out!” were a direct command rather than a suggestion that something might happen at some indeterminate time in the future.

Watts v. United States (Supreme Court, 1969):  The Court ruled that an 18-year-old man at an anti-Vietnam War rally, expressing an unwillingness to be drafted to fight in Vietnam, was within his First Amendment rights when he said, “If they ever make me carry a rifle the first man I want to get in my sights is LBJ.”  They found that this fell short of a threat to assassinate President Johnson and was, rather, an expression of a personal feeling about the president, an opinion.  As with the other cases, Trump was not successful in claiming this for a precedent on his side.

Sorry, Trump.