The Democratic Dilemma Revisited –
Clear and Present Danger Now
If it wasn’t clear before, it is now. The democratic dilemma is no longer abstract and prospective, as it was when I first wrote about it (see link).
The danger is now clear and present.
Federal government employees—and all responsible US citizens—now face a momentous decision: defend the constitution by opposing the unconstitutional actions of a democratically elected president, or show loyalty to a tyrant who is wielding his narrow electoral mandate to challenge the constitutional underpinnings of our democratic republic.
It is hard to know where to start.
Several illustrative examples:
— The regime has defied the judicial power’s ruling that it return Salvadoran national Kilmar Abrego Garcia to the United States. Abrego Garcia was illegally kidnapped, detained, and deported to a notorious prison for terrorists in his country, which government lawyers admitted in court was done by mistake. As 4th US Circuit Court of Appeals Judge J. Harvie Wilkinson III stated in his April 17 opinion, the regime’s action “should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses hold dear”. The blistering rebuke, penned by a conservative jurist who was appointed by President Reagan in the 1980s, is categorical.1 In a profession often characterized by nuanced interpretations and fine-toothed distinctions, this is as black and white as it gets. But the regime couldn’t care less, claiming it has no power over the actions of what is essentially a client state that the US is literally paying to do our bidding. To speak euphemistically, this stretches credulity well past the breaking point. The regime is thumbing its nose at justice as we know it—due process, the rule of law, the separation of powers, the rules, norms, and procedures that form the basis of our constitutional government—and grossly exaggerating the supposed imperatives of foreign policy and the limits of our diplomatic leverage abroad.2 Some regime apologists ask: Why all the attention on one “insignificant” man, and not even a US citizen, a legal permanent resident, or an ideal ethical specimen at that? (link) The answer is simple: Abrego Garcia represents the visible tip of the iceberg of the regime's lawlessness, which will surely deepen and expand if we let it. For all we know, US citizens may already have been caught in the dragnet. Due process exists to clarify precisely these kinds of diabolical details. Even if not yet, US citizens are clearly next. The criminal president has stated as much publicly, promising that so-called “homegrowns” will be put on the list for expulsion to the Salvadoran gulag or to one of the chain of 5 new such facilities that he said would need to be built to accommodate them.
— The regime has imposed haphazard, ill-advised, and nonsensical tariffs on all countries—formal free trade agreement partners and economic and strategic rivals alike—with the notable exception of Russia. It has usurped legislative authority under Article I of the constitution in taking these foolhardy steps, or at a minimum taken illiberal advantage of Congress’s imprudent delegation of its tariff-wielding powers. The regime’s subsequent decision to pause for 90 days the imposition of some of these tariffs has only deepened the economic uncertainty, thrown the US and global economies into crisis, and undermined confidence in American stewardship and the central role of the US dollar in the global economy. Its decision to raise tariffs on the People’s Republic of China (PRC) to almost laughably high levels has, predictably, provoked a targeted response from a canny opponent. The only country recognized as a true peer competitor in the US National Security Strategies of both Trump 1.0 and Biden3 , the PRC has now imposed reciprocal tariffs on American products, targeted high-profile US firms in China for retaliation, and halted the export of rare earth minerals and magnets, which is likely to seriously harm US national security interests if not reversed before long. It’s not hard to guess which side will blink first. To cap it off, the “fear of retaliation” expressed by Republican Senator Lisa Murkowski underscores the urgency of the crisis. If a sitting US Senator is afraid to speak her mind in criticizing or opposing the regime’s destructive and/or undemocratic actions, how about the rest of us?
— The regime has shuttered federal agencies wholesale and begun dismantling others, destroyed autonomous public entities, fired tens of thousands of career federal employees (who supposedly enjoy civil service protections)—and done all this without congressional mandate or active support. (Resistance has come almost exclusively from the Democratic side so far, while Republican backing has been largely tacit). At the same time, it has dismissed the senior-most uniformed military leaders at the DOD and customarily autonomous officials at the DOJ and FBI and other sensitive agencies focused on national defense, security, and the law and replaced them with loyalists whose sympathies lie with the lawless president and not the constitution. It is no surprise that the Federal Reserve Chair, Jerome Powell, who has expressed independent views with respect to the inflationary effects of tariffs, has now come into the regime’s crosshairs.
— The regime has threatened democratic neighbors, treaty allies, and partner nations like Canada, Mexico, Denmark, the EU, and Ukraine while cozying up to our most hardened strategic rival, upending the rules-based international order that had been in place since the end of WWII with no clear plan as to what might follow. Global anarchy? A dog eat dog world? Geographic spheres of influence, with erstwhile allies like Japan and South Korea moving into the PRC’s orbit? The collapse of the precarious nuclear non-proliferation regime? What else? His campaign promise to end Russia’s unprovoked war in Ukraine on his “first day” back in office has been revealed for the bumptious lie it always was. Empty bluster has rarely worked as a diplomatic tool, and yet that tool remains the preferred option in our kayfabe president’s toolkit (link). We are now seeing what happens when pure make-believe “truth” clashes with unmovable reality, and this is just the start. The entropy and rot will deepen, expand, and fester further—domestically and internationally—if we let it.
*****
Greatest Feat of Destruction Ever
In one way at least, the regime really has accomplished more in its first 90 days than any other prior administration did in four, eight, or more (in the case of FDR) years. It has accomplished more wanton destruction. Indeed, the regime could not have done a more efficient and effective job of across-the-board destruction were this its highest priority objective. Which begs the question: is it?
In this context, the real reason for the systematic attack on career government employees becomes clear. They represent a potential check on the president’s power grab. Apolitical career professionals pledge on oath to support and defend the constitution against all enemies foreign and domestic (emphasis mine). They have no legal, constitutional, or ethical duty to support a lawless president, and no narrow personal reasons to do so either. Indeed, they are bound by oath to oppose criminality. (It is important to point out that, unlike the regime’s senior political appointees, most of whom are independently wealthy, the great bulk of career civil servants depend on their federal salaries to make ends meet and support their families, which complicates their personal calculus in confronting a criminal regime). A lawless president needs cronies and lackeys to carry out his project—people who may have mouthed the same oath to support and defend the constitution but who did so with their fingers crossed behind their back and whose true loyalties lie with the president. As such, apolitical career professionals represent one obstacle still standing in the path of the regime’s authoritarian project. This explains the regime’s slash and burn effort to get rid of them.
It bears repeating. Being democratically elected does not sanction anti-democratic action. It does not give this—or any—government license to destroy democracy. It gives no carte blanche to a tyrant, no free pass to gather power unchecked, no blank check to autocracy.
*****
Our Constitutional Obligation
If and when a democratically elected government defies its obligation to support and defend the constitution, every faithful public servant is duty-bound to block it. This includes career professionals of course, but (technically speaking at least) political appointees too. For our part, we the people have the constitutional right, even the obligation, to take all appropriate steps to remove the tyrannical regime and restore our democratic republic.
https://time.com/7278774/judge-harvie-wilkinson-opinion-read-full-text-trump-abrego-garcia/
A country of just over 6 million people roughly half of whose population resides or has resided in the United States, El Salvador’s economy depends to a large degree on remittances sent from its citizens in the US. The United States is reportedly paying $6 million to the Bukele government to warehouse alleged foreign-born (mostly Venezuelan) criminal deportees—a payment scheme that has not been approved by Congress, as required by law. Secretary of State Marco Rubio or one any of his political appointee subordinates could send a simple WhatsApp text to the Salvadoran president—“let him go”—and it would be done. In a word, the Salvadoran president is following the instructions of his American bosses. That Maryland Senator Chris Van Hollen (the son of a Foreign Service Officer) was able to meet with Abrego Garcia in El Salvador, and cause him to be transferred to a separate facility, suggests that Bukele knows he is treading on thin ice. Should a successor democratic government eventually assume power in the United States, Bukele’s status as “friend of the United States” could change quickly. He better than anyone knows what could happen after that.
https://www.acq.osd.mil/ncbdp/docs/NSS-Final-12-18-2017-0905.pdf; https://bidenwhitehouse.archives.gov/wp-content/uploads/2022/11/8-November-Combined-PDF-for-Upload.pdf
Your most passionate piece yet. But do you really consider yourself and your colleagues apolitical? On almost every issue your position is indistinguishable from the most partisan and liberal/left of Democrats and, to be fair, that sort of political oreintation is hardly unusual when it comes to those steeped in governmental bureaucracy, whether their roles be considered "professional" or not. (Personally I find that such descriptions like "professional" tend to raise suspicions and skepticism, due to the whiff of "don't use your own brain, I'm an expert so just accept what I say" style elitism and arrogance. I understand that that's not your intention but it's a bad look. It smacks of "methinks he doth protest too much".
There is no doubt that Trump is pushing boundaries all over the place -- often outrageously so -- but I am also constantly finding myself pulled into foreign territory and end up reading about court battles, appeals etc., even with respect to the Garcia case, whom I understand was deported "in error" to the extent that there was a judicial "hold" that was missed, but otherwise my understanding is that this person was in the US illegally, etc. To me the really crucial issue is that Trump is basing these deportations on a seldom-used statute that purports to give broad powers of deportation during times of war. That, too, is currently under judicial review.
If we are talking about "professionalism" and "expertise", I for one admit that I am no professional or expert when it comes to constitutional or immigration law, yet lately I cannot avoid a constant barrage of hyperbole from both sides about whether something is "legal or illegal", or "constitutional or unconstitutional" etc. Not only are the lawyers getting rich these days, but so are apparently unqualified non-lawyer pundits and analysts. It's confusion-inducing, to say the least.
And, even though I don't agree with him, I also understand Trump's position on what people derisively call "anchor babies" ie that there seems to long have been a legal argument that says that the Constitution does NOT require the automatic grant of citizenship to any human who happens to be born on US soil, regardless of the immigration or citizenship status of that human's parents. Though distasteful, that too has apparently been a live issue for a very long time -- and I had no idea until I looked into it. I was also shocked to find that Trump himself has talked about it ad nauseum over decades. All I have been getting from media is the idea that Trump just suddenly pulled it out of his posterior -- clearly untrue. The result is that, whatever the demerits of his policies, I at least GET why he is taking aim at that long-held legal status quo.
Overall, I interpret what's happening as a rather mind-blowing series of "Roe v Wade" style challenges and a veritable near-simultaneous avalanche of them at that: attempts to resolve some of the thorniest of legal and constitutional "established" statuses quo and utterly BLAST the "established truths" with fast-moving administrative actions and legal proceedings. In some cases, he is going beyond ambiguity and is clearly looking for existing precedents to be overturned as well.
So far, the judicial system seems to be holding, thank God, so I personally have a long way to go before I am willing to reach the same conclusions you have. I was shocked by the overturning of Roe ... until I researched the actual judicial history of the decision, which had apparently since its arrival been widely regarded throughout the legal world as a fairly ridiculous decision that was bound to be overturned at some point. I had found that shocking as well, since I had always assumed that that decision was on solid legal ground, not just moral ground. But the very broad consensus has apparently always been that it was one of the worst decisions, judicially and legally and constitutionally speaking, in US history, and a poster child for for those roused to opposed unconstitutional "judicial activism". Personally, I expect more such "Roe-level" legal and judicial shocks along the way. It's as though decades of squishy complacency and smugness is being tested like never before. And, yes, that is certainly a wake-up call. But I don't think that bureaucrats, present or former, are going to be of much assistance, since their conflicts of interest are too great, for they are the cogs in the very machine that is being so aggressively tested. Of COURSE they are going to push back.
I guess my point is that, yes, I too have an elevated sense of concern. But I am also gratified to see that the judicial system seems to be holding firm, so I see your passionate piece as more of -- sorry to say -- a nakedly politicized screed, with an hysterical "to the barricades" tone that I find to be not only premature, but inappropriate and unwise, given the level of violence that is possible when reason is dispensed in favour of raw anger.
So to sum up I suspect the Supreme Court will be VERY busy in the coming days and months. But I think we should all keep the invective to a minimum if possible and at least LISTEN to the content of the arguments of the "other side", which in your current piece you seem to have ignored completely.
Otherwise, it may not be the Supreme Court that becomes busy but instead whatever forces are required to be unleashed in order to deal with an unfolding civil war. And that, I submit, is the last thing we want or need.
Well, that about sums it up! It's all about consolidation of power.