The Oldest Vulnerability in the Constitutional Checks-and-Balances System

January 31, 2017 Leave a comment

The United States Marshals Service famously is the nation’s oldest federal law-enforcement agency. It supports the administration of the federal judiciary by providing courthouse, judge, and witness security and handling prisoner custody and fugitive apprehension, among other things that are difficult for judges, who tend to be limited to activities like issuing written orders and rulings, to accomplish as a practical matter.

Our conventional understanding of the checks-and-balances system does not accord much checking authority to the judiciary, however, which essentially is limited to declaring that a congressional or executive action is unconstitutional. If the chastised branch does not come to heel, there would seem to be little the judiciary can do, except perhaps issue another order.

In 1955, the Supreme Court did just that. Faced with inaction following its landmark ruling in Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954) (Brown I), which rejected in public schools the separate-but-equal segregation regime previously authorized under Plessy v. Ferguson, 163 U.S. 537 (1896), the Court issued its Brown II decision, demanding that schools desegregate “with all deliberate speed.” Brown v. Bd. of Educ. of Topeka, 349 U.S. 294, 301 (1955) (Brown II).

(Somewhat interestingly, some view the “with all deliberate speed” language not to mean “quickly,” which I think is how it is taught today, but as creating a “loophole . . . that allowed Southern states to stall racial equality.” This view may stem from the procedural particularities of the Brown II ruling, which sent various post-Brown I challenges back to various federal trial courts and charged those courts with the task of entering new “orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Id. Thus, “without an official court order, states could essentially take as little or as long a time as they deemed necessary to desegregate their school system.”)

Still, despite the Brown II reprimand, inaction persisted in some quarters such that necessitated President Dwight Eisenhower’s use of federal soldiers to force compliance in Little Rock.

Less than two weeks into his term, President Donald Trump’s administration has presented the nation with a similar sort of constitutional problem. On Friday, he issued an executive order banning non-citizens from entering the United States from Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen for ninety days and suspending the Refugee Assistance Program for 120 days. The executive order also provides that, “upon the resumption of the [Refugee Assistance Program] . . . the Secretary of Homeland Security [] is further directed to . . . prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Given the executive order’s focus on countries with majority-Muslim populations, many recognize this language as a religious-based carve-out for Christians. Among other things, the executive order also places a cap– at 50,000– on the number of refugees who will be allowed to enter the country during fiscal year 2017.

The next day, multiple federal trial judges separately issued temporary restraining orders to petitioners who had arrived in the country with previously valid immigrant visas but were detained at airports under the new executive order and lawful permanent residents. The court orders are supposed to halt enforcement of key provisions of the executive order and prevent removal of affected individuals from the country. (Numerous other legal actions have been filed challenging the order.)

Precise information is difficult to come by, but there have been reports that U.S. Customs and Border Protection (the sub-agency of the Department of Homeland Security charged with law enforcement at the nation’s borders) officials were refusing to comply with the court orders staying enforcement of the executive order by continuing to detain or deport people attempting to enter the country and denying detainees access to legal counsel. A DHS press release stating that the agency would continue to enforce the executive order mentioned, though seemingly deemphasized, the court orders. A more recent press release from CBP asserts that the agency “immediately began taking steps to comply with the [court] orders and did so with professionalism.”

A refusal by the executive branch to comply with federal court orders could present an even more significant constitutional problem than the one at issue surrounding Brown, because it would present a direct challenge to the judiciary by a coequal branch, and because an Eisenhower-like intervention would be unavailable.

There is no obvious path to resolution of such a head-on affront to the authority of one branch of the federal government by another, and this particular gap in the federal governing apparatus is the most vulnerable one. While some have looked to the Marshals to address the currently brewing conflict, it remains unclear what they actually could or would do:

In the meantime, while the possibility of a constitutional crisis looms, uncertainty likely exists as a very real detrimental consequence for those directly affected by the conflicting executive and judicial orders.

As a momentary closing point, here is a recent passage from a judicial decision written by Judge Neil Gorsuch, the person President Trump this evening nominated to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia, quoted in a news report, that suggests that a Justice Gorsuch would be concerned about separation-of-powers matters and would look upon an expanding executive branch in that context with a critical eye:

GUTIERREZ-BRIZUELA v. LYNCH: In this 2016 case, Gorsuch wrote for a panel of judges who sided with a Mexican citizen who was seeking permission to live in the U.S. The case gave Gorsuch an opportunity to raise an issue he has championed in his time as a judge: whether courts should so readily defer to federal agencies in determining what laws and regulations mean.

Referring to high-court cases that Gorsuch believes cede too much power to agencies, he wrote: “There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is [Supreme Court precedent addressing executive-branch authority] permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

Categories: Compassion, Current, Law, Legal, Politics

Book Review: Based on a True Story: A Memoir

December 31, 2016 Leave a comment

img_20161231_0908568I have long been a fan of comedian Norm Macdonald, but it was not until a few years ago that I knew he could write. A product of the Canadian education system, he was literate, of course, but his public persona suggested to me that he might not have much use for or facility with the written word. Norm disabused me of that false notion nearly four years ago, however, when his first article appeared on Bill Simmons’ late website, Grantland. Macdonald’s tenure with that site was, by funded internet website standards, brief, consisting roughly of the first four weeks of 2013. In that time, he wrote six articles: two on golf, one on hockey, and three volumes in an aborted series entitled “Norm Macdonald’s Keeping Resolutions.” My favorite of the lot was the hockey article. When it was published, right after the latest NHL lockout ended, I wrote:

Norm Macdonald’s latest article is a short story in two parts– two short stories, really– with some light humor, of course, but more compellingly, real, emotional, suspenseful, rising action conveyed in absolutely compelling fashion with two lovely turns of phrase, one for each part.

The “Resolutions” series was a first-person, semi-autobiographical story about sports gambling and a trip through the Nevada desert with Norm’s real-life friend, Adam Eget, “sober now for over a year but nonetheless still somewhat interesting.”

Constituting the largest body of his published writing until now, Macdonald’s Grantland articles, presented with little fanfare at the time and seemingly little remembered now, provide more than a little foreshadowing (and, for the author, source material) for some of the subjects and devices in his 2016 comedic novel, Based on a True Story: A Memoir. Anyone who read Norm’s 2013 articles had no reason to be surprised that he could and would produce such an excellent and wide-ranging piece of literature.

A note on genre classification: Based on a True Story is identified, right there on the cover, as “A Memoir.” Anyone who reads it will recognize it not as a memoir but as a comedic novel written very loosely in the style of a memoir. Most book sellers these days do not read the books they sell before displaying them in their stores, meaning that Macdonald’s book typically appears in the nonfiction section. This misclassification, flowing from a fundamental misunderstanding of the book, seemed to genuinely upset the author, who made it a central subject of his comments in media appearances in support of the book’s release and in his own online comments.

Surprise is an element of comedy, but there is plenty of new ground in Based on a True Story, such that it will truly entertain even the biggest Norm fans. I think it always has been difficult, and, I suspect this is true in today’s media age more than ever, to write a book that will make its readers feel real emotion. Sadness. Laughter especially. Yet Macdonald, with this book, concocts emotional moments alongside real, laugh-out-loud moments, woven through metacontent, 1970s country music, and a sports-gambling-driven journey through the Nevada desert with Adam Eget. This is one of the very few books I ever have wanted to read a second time.

In the foreword, Louis C.K. writes that “a lot of comics over the years have been compared to Mark Twain, but I think Norm is the only one who actually matches the guy in terms of his voice and ability.” With Based on a True Story, Macdonald has provided the comedic novel for a generation.

Categories: Books, Sports

Could the Wording of a Ballot Question Cost DeKalb County Homeowners?

November 7, 2016 1 comment

When they enter voting booths tomorrow, some Atlanta-area residents will see this question on their ballots:


This is why you study for tests. Good lucky, everybody.

Categories: Current, Language, Law, Politics, Tax

Winner of Nobel Prize in Literature Tells a Knock-Knock Joke

October 27, 2016 1 comment

Two weeks ago, Bob Dylan won the Nobel Prize in Literature, becoming the first musician to claim that award. Yesterday morning, I heard him tell a knock-knock joke:

Knockin’ on the door, I say, “Who is it and where are you from?”
Man says, “Freddy!” I say, “Freddy who?” He says, “Freddy or not here I come.”

Bob Dylan, Po’ Boy, on Love and Theft (Columbia Records 2001).

Categories: Current, Music

Is This My Favorite New York Times Article?

September 30, 2016 2 comments

Nominally, anyway, this website is supposed to be about asking questions. Here is one: did the New York Times publish my favorite New York Times article earlier this month? I have been asking myself that question since September 8, when the paper ran an article entitled, “‘What Is Aleppo?’ Gary Johnson Asks, in an Interview Stumble.”

Before September 8, Gary Johnson, the Libertarian Party’s 2016 presidential candidate, had been having a difficult time attracting national, mainstream media attention. By third-party standards, he was polling well, though, and, in early September, he was making a big push to force the hand of the Commission on Presidential Debates to include him in the then-upcoming first presidential debate.

Part of that push included an appearance on an MSNBC morning talk show that day. During the appearance, one of the hosts asked him, “What would you do, if you were elected, about Aleppo?” Johnson responded by attempting to clarify the question: “About?” The host: “Aleppo.” Johnson: “What is Aleppo?”

The internet exploded. A candidate the primary-party adherents previously refused to acknowledge existed rapidly was called out for widespread rebuke, deemed an unserious candidate, and declared unworthy of the presidency (one politically attentive friend wrote that this made Johnson less fit to occupy the White House than Donald Trump). The unstated assumption, of course, was that everybody knows what Aleppo is, and if Johnson is ignorant of such a basic thing (“What is Philadelphia?”), he must be a fool indeed.

News websites rushed to capitalize on the sudden spike in critical attention to the Johnson campaign, and the New York Times, by way of the above-linked article, was no exception. It soon became clear, however, that Johnson was not the only purported policy expert asking “What is Aleppo?” By the end of the day, two corrections appeared at the bottom of the Times’ viral content piece, which they published in their Politics section as part of their Election 2016 coverage:


In this political age of internet journalism, that is the definition of perfection, and I have little more to add than to answer my question above in the affirmative.

(Regarding the coverage of the moment more generally, it almost certainly goes without saying that it ended with the “What is Aleppo?” question and ignored Johnson’s recovery and substantive answer when he realized he was being asked about Syria.)

This presidential campaign has been relatively gaffe-free, at least by conventional (e.g., Joe Biden) standards. Many regard Trump’s entire campaign as one long-running gaffe, or worse, though, and it likely has warped our understanding of what it is for a presidential candidate to “gaffe” during a campaign.

As Trump’s campaign gained steam, writers took aim, laboring to describe just how terrible and unpresidential they believed Trump was. In one sense, the task was easy. Trump provided– and is continuing to provide– plenty of examples, any one of which seemingly would have been enough to sink a candidate’s chances in previous elections. (Maybe part of the reason people have been so quick to pounce on Johnson after his Aleppo gaffe, as well as the more recent one (details; response), is because it allows them to slide back into normal campaign territory. Johnson is more of a conventional presidential candidate than Trump, and, as such, he has made some seemingly typical candidate blunders.)

In another sense, though, the task of describing and contextualizing Candidate Trump has proven increasingly difficult, because, even before Trump emerged as a viable politician, we were doing a poor job of allocating our extreme adjective resources. The danger of describing everything as “incredible” is that, when something actually incredible (unbelievable, terrible, etc.) happens, the dilution of the word’s meaning makes it difficult to contextualize just how extreme the occurrence was. Maybe Trump really is an unimaginably extreme candidate; more likely, I think, he is exactly as extreme a candidate as we used to consider our politicians (“war criminal!” “savior!”).

Johnson’s gaffes may facilitate the termination of any practical viability present in his campaign. They probably could not have come at a worse time for him. They also offer a lens through which to view the campaigns of the primary parties’ candidates, as well as the media’s coverage of the campaign as a whole.

More than anything, though, I keep coming back to that New York Times article, which, if little else, serves as a needed lesson in humility and a (perfect, humorous) reminder that we all might not be the experts we think we are.

Categories: Current, Internet, Politics

These Colors Don’t Run

August 31, 2016 2 comments

This week, according to sludgebait website Awful Announcing, “Everyone Is Losing Their [sic] Minds Over Colin Kaepernick.” During a preseason NFL game, television cameras caught the San Francisco 49ers backup quarterback sitting during the traditional pregame playing of the national anthem. Kaepernick addressed the subject in a postgame interview:


His team promptly issued the following statement:

The national anthem is and always will be a special part of the pre-game ceremony. It is an opportunity to honor our country and reflect on the great liberties we are afforded as its citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem.

Kaepernick’s former teammate, Alex Boone, also was quick to react, and his critical comments reflected those of many who were displeased with Kaepernick’s display:

You should have some f—ing respect for people who served, especially people that lost their life to protect our freedom. We’re out here playing a game, making millions of dollars. People are losing their life, and you don’t have the common courtesy to do that. That just drove me nuts. . . . There’s a time and a place. Show some respect.


I haven’t been alive every year America, or its flag, has, but I have the following senses: 1) the American flag long has been a symbol of great reverence for the nation’s military, for obvious reasons; 2) the flag was not always the exclusive symbolic property of any particular political or social faction, however; 3) as it had during prior times of national crisis, the flag’s symbolic energy increased during the aftermath of the September 11, 2001 attacks; and 4) during that time, and as the nation’s response to those attacks eventually became a matter of partisan and public controversy, the flag, as a symbol, traveled with that response and its proponents such that, in the following years, many wore or displayed the flag as a symbolic endorsement of the growing War on Terror and the political and military leaders of that war, to the exclusion of other people and groups, including those who questioned or opposed those actions.

The American flag belongs to all Americans, however, including those who want to fly it in support of a particular political regime; those who want to fly it in opposition to a particular political regime, as a reminder of values for which it stands that they feel that regime is disregarding; those who want to reject it; those who want to burn it; those who want to ignore it; and anyone else.

Kaepernick’s protest raises serious and immediate practical concerns. The discourse his protest initiated also highlighted the reality that many view the flag and other national symbols as the exclusive property of some, but not all. That is worrisome, but it also provides an opportunity to examine and reverse the trajectory of the flag as a captured, proprietary national symbol.

Wave that flag
Wave it wide and high
Summertime done
Come and gone
My oh my

Categories: Current, Discourse, Politics, Sports

We Need a Two-Party System, Part 2

July 28, 2016 Leave a comment

Last month, in response to indications that the Democratic National Convention drafting committee’s party platform policy decisions appeared to portend movement by the Democratic Party closer to the Republican Party, if not any meaningful sense of “the center,” I wrote that a  functioning democracy needs a national political environment that features at least two political parties, and that, right now, it looks like America’s may be collapsing down to one.

GOP 2016 ClevelandThe Democrats, of course, are not the only group shying away from their ostensible policy goals. In the lead up to the Republican National Convention in Cleveland, reports surfaced that, despite Ohio’s status as an open-carry state, “No guns will be allowed in the convention center where Trump will speak — nor in the tightest security zone immediately around it.”

The Republican Party’s presidential nominee, Donald Trump, has stated a general opposition to gun-free zones, however, and it is a position many in his Party share. One of the principles underlying this belief is that, had they lawfully been permitted to bear arms, “good” people would be able to fight back, by use of firearms, against “bad” people committing violent acts in places like schools and movie theaters.

The statistical rarity of this occurrence– ten times in the last nineteen years or so, by one careful count— only reinforces the pro-gun position. After all, had more honest citizens been allowed to carry firearms in public, they could have arrested even more violent criminal behavior.

Yet, a gathering of, presumably, the most ardent adherents to this thesis, taking place against a legal background that otherwise would have authorized such armament, guns were not allowed. If not at the RNC, then where?

The best thing for America might not be a powerful political faction that favors the proliferation of deadly weapons; nevertheless, the nation needs policy makers who adhere in practice to the policy positions they espouse. For a policy maker to do otherwise is to be dishonest with his or her constituents, an act both more inimical of and, unfortunately, likely more prevalent across this republic.

Categories: Action, Current, Politics