Trump Threatens Birthright Citizenship

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HE’S BACK! And this time Donald Trump will have a compliant Congress and a whole roster of willing Cabinet ministers. The first thing he promises to do — after upending international trade with tariffs — is to deport millions of immigrants. If this did not promise to be both tragic and harmful to the economy, I would feel like making a big bowl of popcorn, pulling up a chair and watching the whole thing crash.

There is no question that we need to get control of our borders and reform our immigration system. If we purport to be a country of laws, then our immigration laws need to be enforceable. While I don’t subscribe to Trump’s racist and xenophobic reasons for deporting people, orderly immigration is an important goal. But equally so are the need to buttress our dwindling working age population and our national responsibility to behave with grace and compassion.

Listening to interviews of people who cross our borders illegally at great peril to themselves, one is struck by the ordinariness of their motivation. They just want to live more prosperous, secure lives. I’ll wager that any of our ancestors who came here voluntarily had the same motivation.

Birthright citizenship is the legal principle that if a child is born in the United States, she is a citizen of this country regardless of the citizenship or immigration status of her parents. More than thirty countries, including Canada and Mexico, recognize birthright citizenship. Others in Western Europe do not. They require at least one parent of the child to be a citizen.

Trump says birthright citizenship is a magnet for illegal immigration and wants to eliminate it. He has threatened to use an executive order to do so once he assumes office. There is one problem. Birthright citizenship is not a government policy that can be changed with a counter policy, or even a law Congress can repeal or modify. The Constitution itself establishes this type of citizenship.

After the Civil War, the United States ratified several constitutional amendments designed to clarify the status of formerly enslaved people. Among these was the Fourteenth Amendment, which states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This is clear enough. The only possible ambiguity relates to the second clause regarding being subject to the jurisdiction of the United States.

Far right immigration opponents like John Eastman have urged Trump to declare by executive order that children born to illegal immigrants are not subject to the complete jurisdiction of the United States because they are not lawfully here and still theoretically owe allegiance to a foreign sovereign. Recall that Eastman, the criminally indicted and disbarred lawyer, was the one who came up with the theory that Mike Pence could simply refuse to certify the results of the 2020 election.

Of course, no established precedent or once-secure right seems safe with the current Supreme Court. But in the case of United States v. Wong Kim Ark, decided in 1898, the Court established that the Fourteenth Amendment creates birthright citizenship even for the children of non-citizen residents. The case arose while federal Chinese exclusion legislation was in force. The government argued that Wong Kim Ark, although born in San Francisco, was the child of two Chinese non-citizen parents who were subjects of the Chinese emperor making him also a subject of the emperor. He was thus not subject to the jurisdiction of the United States, or so the argument went.

But the Supreme Court wasn’t buying this argument. It ruled, with two exceptions not relevant to today’s immigration debate, that anyone born within the territorial boundaries of the United States and residing here was “subject to the jurisdiction of the United States.” The jurisdiction of a country within its territorial boundaries is complete. It would certainly seem correct that our “jurisdiction” applies to children born to illegal aliens — they are required to pay our taxes and are subject to criminal penalty for failure to comply with our laws like the rest of us.

It is hard to imagine West Virginians with serious concern about the practical effect of immigration on their lives, lawful or unlawful. In 2023, there were 32,309 foreign-born people in West Virginia, which is about 1.8% of the state’s population. This is lower than the national average of 14.3%. As a recent article in The Wall Street Journal put it, “there is little evidence that many recent immigrants – either those who entered legally or those who didn’t – have any inclination to go to West Virginia, the only state with fewer residents than it had in 1940.”

The same article pointed out that West Virginia has one of the two lowest labor-force participation rates in the country, while having the second highest rate of job openings and the fourth-highest rate of vacant housing. In other states eldercare is provided disproportionately by immigrants. And the National Association of Home Builders reports that while our native-born workers remain reluctant to join the industry, one in three craftsmen in the construction trades come from outside the U.S. Don’t we need more workers to care for our elderly and build our homes?

Other states with workforce problems like West Virginia’s and an aging population are trying to recruit immigrants. Maine’s government has a dedicated office to welcome and support immigrants. Utah has extended in-state college tuition to refugees, asylum seekers and other migrant groups.

But reason and good public policy don’t seem to matter as much these days as the appeal to emotion. The Trump juggernaut is set to roll. It’s just that when it comes to West Virginia, don’t count on good things happening from the President-elect’s attack on immigration and birthright citizenship.

Trump Fans Want to Talk About Anything But This — He’s Guilty

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It  started immediately after Donald Trump’s indictment. First there was the “whataboutism” and false equivalencies. What about Hillary’s emails? What about the classified documents Joe Biden had? Then the claim that the Justice Department has been weaponized to prosecute only Republicans. Then the claim that the communist, Democrat deep state is determined to take down the leading candidate to oppose Joe Biden in 2024.

This is all deflection. Just like Trump himself, his supporters are grasping at shiny, manufactured grievances but don’t want to talk about the big issue — he is guilty of the serious crimes charged in the indictment.

Whataboutism is the practice of responding to an argument, not with a counterargument, but with an attack that requires the opponent to go on the defensive about another issue. This avoidance maneuver happens often in political debate driven by partisan bias. Sometimes, and our present situation is one of those times, whataboutism is calculated wholly to avoid acknowledging an opponent’s valid point.

We shouldn’t reward whataboutism by taking it seriously. But, okay, what about Hillary’s emails and Biden’s documents? That’s where false equivalency comes in. The gist of Trump’s indictment is that he intentionally retained classified documents, repeatedly refusing to return them or even acknowledge he had them. Then he covered up and lied about having done so. Neither Clinton nor Biden was ever accused of that kind of conduct.

In fact, both Clinton and Biden fully cooperated when asked to do so. Biden actually self-disclosed that he had some classified documents from his time as Vice President. Nevertheless, Biden’s Attorney General Merrick Garland has appointed a special counsel to investigate. The conclusion of the Clinton investigation was that she had been careless but had no criminal intent. So no crime and no indictment. The investigation into Biden’s handling of classified documents has not reached a conclusion.

And here is another key point — Trump has not been criminally charged for taking to Mar-A-Lago any of the classified documents he returned when requested to do so, even though he had no right to possess them. If he had simply given all the documents back he wouldn’t be in this fix.

A person who claims that the Justice Department has been “weaponized” by the Democrats to indict Trump simply does not understand the special counsel mechanism. Or perhaps doesn’t want to understand. A special counsel like Jack Smith operates without political interference.

Special counsel are appointed by both parties. In fact, Trump’s Attorney General William Barr appointed John Durham as special counsel to investigate intelligence gathering and law enforcement activities directed at the 2016 election. The Biden Administration did not interfere with Durham’s investigation after Biden took office. Likewise, the Biden Administration has not influenced Jack Smith’s charging decisions.

The weaponization charge boils down to the fact that Donald Trump has been indicted, as if he is some sacred cow. The allegation is really driven by the result of Smith’s investigation, not the misuse of the process. But after reading the indictment, it is hard to imagine any other result.

The one serious argument made against indicting Trump is that in an evenly divided and polarized country a sitting President should not be seen as prosecuting his predecessor and current rival. The claim is that indicting Trump is political overreach by the Biden Administration of the sort common in third world countries. I am not persuaded.

In the first place, the argument loses steam in light of the independence of the special counsel. Jack Smith is a career prosecutor with an international reputation, not a political tool. Yes, there will be a cost to taking action against Trump — our exemplary system of justice will lose legitimacy among enraged Trump supporters. But where issues of grave national importance are involved there is also a cost in not acting. We would be more like a third world country if we failed to hold Trump accountable as any normal person would be. In the end, if he pays a price for his criminal behavior it will be a triumph for democracy and the rule of law, not a stain.

And by the way, why does the fact that Trump is the leading candidate for the Republican nomination matter? He has been the leading  candidate for months, even announcing early so he could be in the race when the expected indictment came down. Evidently, he thought this would protect him, but he has learned that being a candidate doesn’t give him a pass for crimes committed.

As far as the Democrats worrying about him as a candidate, nothing could be further from the truth. Biden’s advisors are crossing their fingers in hopes that Trump will be Biden’s opponent in 2024. As the Wall Street Journal aptly put it, if Republicans nominate Trump again, they won’t “own the libs,” the libs will own them.

Should the U.S. Lease St. Helena Island?

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Recent legal events have led me to recall St. Helena, one of the most remote places in the world. St. Helena is a small volcanic island in the Atlantic, about 1,200 miles off the coast of Africa and 4,000 miles from the coast of Brazil. The island was, of course, the final place of penal exile for Napoleon Bonaparte, the self-crowned Emperor of France.  St. Helena is now a British Overseas Territory, and I’m sure the Brits would welcome a new revenue stream from an old business — a small but very special penal colony.

St. Helena wasn’t the first place the world sought to stash Napoleon. In 1814 he was exiled to Elba, an island in the Mediterranean. Elba had a population of 12,000 and Napoleon was allowed the somewhat humiliating title of Emperor of Elba. Arriving at Elba he immediately began plotting his escape, which he accomplished in 1815 by slipping past his guards and eluding British ships.

Once back in France Napoleon began drawing huge crowds. French police forces were sent to arrest him, but upon arriving in his presence, they kneeled before him. Does this remind you at all of the fealty shown to a certain political cult leader in America today?

It wasn’t until after his defeat at Waterloo in 1815 that Napoleon was exiled to St. Helena.undefined That island was chosen because it was believed that escape was virtually impossible since the British Royal Navy controlled the Atlantic. Still, the British put Napoleon under armed guard, stripped him of most of his companions and placed him a lonely, windswept house named Longwood.

While at Longwood House, Napoleon constantly complained about the damp and windy structure, alleging that his captors were trying to kill him by means of the rather primitive conditions. Finally the British agreed to improve things and built him a new residence, but he died from complications from an ulcer in 1828 before it was completed.

Penal exile is not an option under the federal criminal statutes of the United States, but it is an intriguing idea for a President who fomented an insurrection and coup attempt. We may simply have to be satisfied with the thought that he could make new friends at a prison within the country.

The Big Lie Conspiracy

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The Declaration of Independence was based on a conspiracy theory. The theory was that the King of England and his high ministers had secretly agreed to deprive the American colonists of their rights as English citizens and to impose tyrannical rule. The Declaration recites a long list of facts offered as proof of the theory. In retrospect, it is unlikely that this theory was actually true, but events at the time took on a momentum that made further proof then beside the point.

This type of conspiracism, which tries to make sense of a disorderly world by asserting that powerful people are controlling events behind the scenes, can be quite useful in a democracy – provided that a serious attempt is made to develop the factual proof. But this useful type of conspiracism has been replaced today by an insidious type not concerned at all with facts. Instead of factual validation it seeks only social validation, often through the number of people who follow or “like” a Facebook post or retweet some outrageous allegation. Repetition and affirmation are the currency. This social validation makes the conspiracy allegations “true enough” without more.

In their 2019 book A Lot of People Are Saying, Russel Muirhead and Nancy Rosenblum call this the “new conspiracism.” They argue that while people who engage in this new conspiracism allege plots against the constitutional order and national values, they do not offer solutions or prescribe practices or institutions that should replace the malignant ones. Their intent is simply to delegitimize the current order. Delegitimization is the cleaving of the public from the sense that government has rightful authority. It undermines leaders of government and institutions and seeks to deprive those institutions of any claim to our respect or consent.

Take the assertion made by Donald Trump before the 2016 election that the election would be “rigged.” He did not bother to explain how it would be rigged or by whom.  He didn’t urge the adoption of a new system for fair elections. He simply characterized the whole presidential election process as corrupt, knowing that if that assertion couldn’t be proved entirely untrue, then it was true enough for people predisposed to believe him. And he made it true enough by constantly repeating it. If his intent had been to prepare his followers for an election loss, then Trump would have stopped claiming the election system was rigged after he won. But instead he continued making this claim.

In this way, Trump sought to use conspiracism to undermine a central democratic institution.  Many historians of authoritarianism and the decline of democracy have cited undermining public faith in elections as a key strategy of would-be dictators. Now, of course, the 2016 rigged election claim has made way for the Big Lie – that Joe Biden was not legitimately elected President in 2020 because the election was stolen from Trump. Those responsible for this heist are never identified.

The Big Lie fits the new conspiracism construct in two important ways. First, it is not concerned with facts and its continued vitality doesn’t depend on facts. Indeed, all the facts that have been developed about the 2020 election show that it was one of the cleanest elections in modern history. Some 19 legal challenges were made to election results in various states. In order to survive, lawsuits require supporting facts but because the Big Lie has no supporting facts – only hyperbolic rhetoric – all 19 of these claims were dismissed.

The absence of supporting facts has not prevented a substantial slice of the public from accepting the truth of the Big Lie. On May 18, 2021 the New York Times reported on two opinion polls conducted by reputable firms. One poll in Arizona concluded that 78 percent of Arizona Republicans believe the Big Lie. A Monmouth University poll found that almost two-thirds of Republicans nationwide do as well. This may stem from the fact that we have sorted ourselves into like-minded communities. Republicans who believe the election was stolen from Trump might do so because they don’t know anyone who voted for Biden.

The Big Lie also fits the new conspiracism construct because it delegitimizes elections and related constitutional institutions. On January 6, 2021, our Capitol building was stormed by a violent mob for the sole purpose of interrupting the counting of Electoral College votes, the last step in confirming Biden’s election victory.  This rabble, fired up by the Big Lie, had utterly lost faith that the national election had been fair.

One is tempted to include the new state laws in Georgia and Texas designed to restrict early voting and absentee ballots as among the products of the Big Lie conspiracy. But I think this would be a mistake. These restrictions on access to voting were part of the Republican playbook before Trump and the Big Lie came along. In truth, these restrictive new voter laws have not been proposed as a remedy for any deep state “conspiracy” responsible for stealing the election from Trump.

Republican leaders are hoping that making it harder to vote in communities of color will make it more likely their party will prevail in elections. While the ultraconservative demographic reliably turns out to vote, this older, white voting group is an increasingly smaller slice of the voting public. Found mainly in rural areas, that demographic is falling behind a more liberal demographic in the cities. The handwriting is on the wall and some other Republican strategy besides weak attempts at voter suppression must be devised.

Restricting access to voting is just a tactic that will not yield big results.  What is the Republican grand strategy? Only a dramatic change in the way the public thinks about – or trusts – the electoral process can prevent the marginalization of the current Republican Party. If voters mistrust the electoral system, the effectiveness of the Democratic Party in the cities and among the educated might be derailed. Perhaps that dramatic change is what is the Big Lie really seeks to achieve — if we can’t beat them at the ballot box, let’s degrade the whole system. How’s that for a conspiracy theory?

Can Trump Pardon Himself?

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The stink from the pile of Trump’s pardons is palpable – it is the stink of corruption and abuse of power.  A high percentage of Trump’s pardons have gone to those with a personal or political connection to him.  Those receiving his favor include murderers, dishonest politicians, fraudsters, thieves, and liars. Still, it is widely believed that a president’s pardon power is unlimited, that he or she can pardon anyone for virtually any crime. The question of the moment, one that our nation has never had to answer, is whether a president can pardon himself.

The pardon power is a creature of the Constitution.  Article II, Section 2 states that the President “shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There is no limitation on self-pardons here. Yet the power to pardon has been exercised by presidents over 20,000 times and never once has anyone attempted to pardon himself.

Certainly, a self-pardon has been considered.  In August 1974 President Nixon met with senior staff to discuss options for concluding his presidency.  White House lawyers had prepared a memo in which they advocated the legality of a self-pardon and, according to Gerald Ford who was in the meeting, Nixon believed he had that power. Nevertheless, he resigned.

The strongest argument in favor of the power to self-pardon is the simple, textual one. The Constitution mentions pardons in only one place, where it seems to give a president plenary power to pardon.  In Schick v. Reed (1974), Chief Justice Burger wrote “we therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.”  It is noteworthy that the Court did not say “in the clause itself.”

There are only two limitations stated in the Pardon Clause – a president may not pardon in cases of impeachment or for state crimes.  This probably means that a president could not pardon himself for the crimes that are the basis of an impeachment proceeding against him.  Nothing elsewhere in the Constitution expressly forbids the power to self-pardon.  In such a case the rule of construction called expressio unius may apply. This rule holds that the expression of one limitation excludes any others not expressed.

But not so fast. The Schick case, still the leading case on the meaning of the pardon power, tells us that the pardon power is not quite complete and self-contained:

In light of the English common law from which such language was drawn the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution . . . .

If we stop at a mere textual reading of the Pardon Clause, which the current Supreme Court might well do, we don’t reach the question of whether a self-pardon would offend the rest of the Constitution. That method of interpretation is called the structural approach.

Self-judging is a subset of self-dealing and the Constitution is full of limitations on self-dealing. Here are a few examples.  A member of Congress cannot simultaneously hold another federal office and cannot resign to take a job that was created, or the pay for which was increased, during that term of Congress. Congress cannot legislate a pay raise for itself that takes effect before the next congressional election. A president’s salary cannot be increased without an intervening presidential election.

Perhaps more to the point is the question of who presides at an impeachment trial.  When the president is tried in the Senate the chief justice presides, not the vice president who is obviously self-interested.  On the one hand he has been elected on the same ticket as the president and might wish the president to be acquitted for that reason.  On the other hand, the vice president would be elevated to president if the sitting president is convicted. The Constitution does not specify who would preside if the vice president were impeached but it certainly would not be the vice president himself.

But neither the textual nor the structural approach to interpreting the Pardon Clause can tell us whether there are inherent limitations in the term “pardon.” For that we have to adopt the approach called originalism, which looks at the how the Framers understood the term at the time it was used in the Constitution.

The Supreme Court has repeatedly stated that the primary source for interpreting the pardon power is the English common law known to the drafters at the time the Constitution was adopted. One should expect, then, that any limitations that existed at common law should be a part of the meaning of the term “pardon” and incorporated into the interpretation of the Pardon Clause, even though not expressed in the text of that clause.  This, indeed, has happened.

The president can issue a pardon at any time after a crime is committed, even before arrest or indictment. But no pardon can issue before a crime is committed. Otherwise, it would amount to an indulgence to commit the crime and be void. Another example is found in Burdick v. United States (1915), in which the Supreme Court ruled that a pardon is only valid if accepted by the defendant. Furthermore, acceptance of the pardon conveys acceptance of guilt, much as in the common practice of plea deals.  After Nixon’s resignation, President Ford gave him terms on which a pardon would be granted. One was an admission of guilt and a statement of contrition. Nixon finally said that he had been wrong in the handling of the Watergate scandal and that fair-minded people could consider his actions “intentionally self-serving and illegal.”

One common law pardon requirement has not yet been recognized by the Supreme Court, perhaps because it has never been properly raised — the requirement of specifying the crime being pardoned.  We know this requirement was part of the English common law just before the Revolution because it was clearly described in Blackstone’s Commentaries, the most influential treatise on law in the 18th Century.

In practice, the rule requiring specificity is followed to this day. For example, the Justice Department maintains on its website the details and actual text of each pardon Trump has granted.  Each one refers to specific crimes.  The Nixon pardon in 1974 is the one significant exception. It read that Nixon was being pardoned “for all offenses . . . which he . . . has committed or may have committed or taken part in” during the period of his presidency.  That pardon went unchallenged by Leon Jaworski, the Special Prosecutor at the time.

Now, imagine that Trump is about to pardon himself.  He is not likely to specify what crimes he is pardoning and certainly not inclined to admit that he has actually committed a crime.  Instead, he is most likely to use a self-pardon to insulate himself from further investigation and prosecution for obstruction of justice during the Mueller investigation and perhaps income tax crimes that may be revealed when his tax returns are disclosed.  Suppose he issues a general pardon of himself and his immediate family for “any and all federal offenses that are alleged to have been committed by him or them at any time preceding the date of the pardon.” Who can challenge the validity of that self-pardon, including its lack of specificity, in what context and to what effect?

The validity of a self-pardon cannot be tested unless Trump asserts it as a bar to prosecution for the crimes allegedly pardoned.  A political decision will have to be made by President Biden to commence a prosecution against his predecessor for federal crimes, perhaps committed while in office, and a legal decision will have to be made by the prosecutors that the arguments against the pardon are likely to prevail.  These are both substantial hurdles.

Much can be said against a sitting president pursuing a criminal case against his predecessor. The objective now should not be revenge, but rather to re-establish the guardrails and norms of democracy.  Our country is too polarized at this moment to absorb what would be interpreted by many as a political hit job.  If Trump is to be prosecuted, let it be by the New York authorities who apparently already have him in their sights.  His self-pardon would not block a state prosecution.

In England before the American Revolution there was never controversy over self-pardons because the king was thought to be above the law and incapable of violating it. But our Constitution rejected kings and kingly power.  It just seems wrong and contrary to our sense of justice for an elected official to be able to pardon himself. We often hear that no man is above the law, but if a president can pardon himself then he is the law.  The argument for commencing a prosecution against Trump, aside from bringing him to justice for his crimes, is to attack the idea of a presidential self-pardon at its first appearance so that the practice cannot take hold.

In summary, will Trump try to pardon himself?  I would bet on it. He has always been a norm-buster, particularly when it benefits him directly. Will he specify what crimes he has committed and what is being pardoned?  Unlikely. Will President Biden authorize a prosecution against Trump for federal crimes and attack the validity of the self-pardon?  I doubt it, but it depends on what evidence is developed and whether he receives a recommendation to do so from a special prosecutor.  What will the Supreme Court say about a self-pardon?  I am worried about the answer to that question, but it certainly would be an opportunity for the Court to establish once and for all that this is a country of laws and not strongmen.

What President Biden Could Do for the Environment in His First Ninety Days

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I recognize that some of my readers may be Trump supporters who would prefer not to see a Biden administration. And, of course, one should not count one’s chickens too early. That said, there can be little debate that the Trump administration has been more hostile to sound environmental policy than any administration in modern history. From the start President Trump identified environmental protection as the territory of Obama liberals and played strongly to his populist base and big fossil fuel industry donors by dismantling every protection in sight. So, a Biden administration has a lot of work to do restoring the positive direction set in previous administrations. Here is where I think he should start.

Rejoin the Paris Accords

Almost every nation in the world, including the United States, signed the Paris Accords in 2015. The central aim of the Accords is to coordinate a global response to climate change by keeping a global temperature rise this century well below 2 degrees Celsius and to find the means to limit the temperature increase even further to 1.5 degrees Celsius.

But Trump is a climate change denier, and his fossil fuel backers have a financial stake in things remaining as they are. On November 4, 2019, the Trump administration began the official process of withdrawing the United States from the Paris Accords, which will not be completed until the day after the November 2020 election. Upon withdrawal, the U.S. will no longer be committed to reach its emissions reduction targets under the Accords.

Why does this matter? First, the United States is one of the two largest emitters of greenhouse gasses in the world so relaxing our efforts to reduce these emissions will have a hugely negative effect on the world’s ability to reach the Paris goals. Second, the United States is an environmental policy and technology leader in world. Our absence from the Accords takes our gravitas and leadership out of the equation. It weakens our international soft power and opens the door to preening by the Chinese.

How could a Biden administration reverse Trump’s withdrawal? The Paris Accords are a non-binding expression of national commitment. President  Obama was able to enter the United States into the agreement through executive action, since it imposed no new legal obligations on the country. Candidate Biden has pledged to recommit the country to the Paris Accords, and can do so most likely through similar executive action. Legislation is also possible.  Experts believe that the United States could rejoin the Accords in a matter of a few months. It is inconceivable that other nations would oppose our rejoining.

Appoint Environmentalists to Head Environmental Agencies

What a concept. But President Trump’s first appointment to head the EPA was Scott Pruitt, a notorious climate change skeptic. As Oklahoma’s Attorney General, Pruitt sued the EPA 14 times. Pruitt’s replacement, Andrew Wheeler, is a former coal industry lobbyist who has proposed dubious rules limiting the kind of scientific information the EPA can consider. One that called on the EPA to consider only “double blind” studies of the sort used in drug trials was called “breathtakingly ignorant” by the Union of Concerned Scientists. The Biden administration should be able to improve upon the quality of the EPA Administrator in short order.

The Department of the Interior sets policy and manages the implementation of many environmental statutes through a group of key agencies, including the Fish and Wildlife Service, the Forest Service, the Bureau of Land Management, the National Park Service, and others. Having a Secretary with environmental sensitivity and purpose could make a huge difference.

President Trump has seemed mainly interested in using the Department of Interior as a conduit to reward his friends in the extractive industries by shrinking protected land and opening federal lands to resource exploitation. Trump’s first appointment to Interior, Ryan Zinke, has been called “the most anti-conservation Interior secretary in our nation’s history.” President Biden’s appointment of a Secretary of Interior will be significant and closely watched.

Revive Obama’s Executive Order Requiring All Federal Agencies to Enhance Climate Preparedness and Resilience

In 2013, President Obama issued Executive Order 13653 instructing all federal agencies to identify global warming’s probable impact on their operations and take the actions necessary to protect against that impact. The importance of this is obvious. In 2016 alone the United States suffered 15 extreme weather and climate-related disasters each exceeding $1 billion in losses. Moreover, the Pentagon has for years regarded global warming as a significant threat to American national security.

But in March 2017, shortly after taking office, President Trump rescinded Obama’s Executive Order. In this order, Trump clearly set out the reason for this rescission:

It is the policy of the United States that executive departments and agencies immediately review existing regulations that potentially burden the development or use of domestically produced energy resources [oil, natural gas, coal, and nuclear energy resources] and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law. “Burden” means to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.

It is not immediately obvious why unburdening the production of domestic energy required the rescission of Obama’s direction to plan for climate disasters, but there you have it. President Biden should immediately rescind this absurd Order and restore good sense to the nation’s efforts to protect itself against the effects of global warming.

Establish Science, Not Politics, As the Guiding Principle of Environmental Policy

President Trump has politicized agencies that are only effective and credible when they rely on the best science. This has happened since the beginning of the Trump administration. For example, he has marginalized the EPA’s Science Advisory Board by prohibiting any member but the Chairman from reviewing decisions regarding agency regulations. His 2021 budget proposes eliminating funding for that agency’s Climate Change Research Program. Pursuant to a direction from a Trump executive order EPA terminated the National Advisory Council on Environmental Policy and Technology. The BLM issued a final environmental impact statement for drilling in the Arctic National Wildlife Refuge and concluded there was no climate crisis.

The list of anti-science policies and actions during the Trump administration is quite long. These have been catalogued by Columbia University Law School’s “Silencing Science Tracker.” Within the first ninety days of a Biden administration, he could issue an executive order directing federal agencies to act only after giving heightened consideration to the best data and scientific opinion available, and he could restore to a prominent role the various science advisory bodies Trump has marginalized or dismantled.

Reversing Anti-Environment Regulations

President Biden will be unable in the first ninety days to reverse many of the harmful regulatory rollbacks and changes wrought by the Trump administration. All of these have been listed by the Harvard Law School’s Regulatory Rollback Tracker. This is because any such action must proceed deliberately and be based on a reasonable assessment of all factors, usually involving public testimony or input. He will not simply be able to change a regulation because he believes it is the ill-conceived product of the previous administration. Trump learned this lesson the hard way, most recently in connection with reversing Obama’s DACA order deferring deportation of children brought here illegally.

But President Biden can direct that these be triaged and that the process for reversing the most significant of them be started. The list is long and tantalizing. It includes Obama’s Clean Power Plan setting standards for power plant emissions, which the Trump administration repealed. The Clean Power Plan was a primary means to reach the nation’s Paris Accords emissions commitment.

There may be other, more important steps President Biden could take immediately to restore the correct course on the environment. The plate will certainly be full. One thing is certain — January 2021 cannot come soon enough for the environment.

Trump Flails Again at Environmental Law and Policy

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While we were distracted by a pandemic, a recession, and an uprising in the streets, Donald Trump attempted to upend decades of environmental law and policy with the stroke of his pen. In an executive order dated June 4, 2020, President Trump directed all federal agencies to use “emergency powers” to speed infrastructure work, specifically waiving or bypassing where possible the National Environmental Policy Act, the Endangered Species Act and the Clean Water Act. Trump justified this order on the basis of the “economic emergency” existing in the country created by the national COVID-19 response. This shouldn’t surprise us – Trump has used every excuse to undermine environmental regulations from the start of his Administration, often favoring oil, gas and coal interests. But the scope of this executive order is audacious.

Bypassing the National Environmental Policy Act (NEPA) by fiat is a big deal. NEPA was one of the first laws ever written establishing a broad national framework for protecting the environment. It requires all branches of government to consider environmental effects prior to undertaking any major federal action. It does not mandate or forbid any particular action. NEPA applies to the construction of airports, buildings, military complexes, and highways, parkland purchases, and other federal activities.

Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all federal agencies when planning these large projects. NEPA regulations already call for speedy production of evaluative work and concise analysis, as well as reductions in paperwork and red tape.

Trump’s executive order identifies the types of infrastructure projects to receive this expedited treatment. These are transportation infrastructure projects, such as highways, “civil works” projects within the purview of the Army Corps of Engineers, and “infrastructure, energy, environmental and natural resources” projects on federal land.

The President’s executive order claims that agencies have been given by regulation “appropriate flexibility . . . for complying with NEPA” in emergency situations by consulting with the Council on Environmental Quality about alternative arrangements. This is true as far as it goes. But the regulation Trump’s order relies on goes on to say that “agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.” 40 CFR 1506.11. No mention is made in Trump’s order of any limitation on his power to waive the regulation, even though one clearly exists, and there is also no mention of a sunset for the emergency declaration.

Another target of Trump’s order is the Endangered Species Act (ESA). It requires federal agencies to consult with the Fish and Wildlife Service about the impact of proposed federal action upon endangered species. The ESA contains language permitting expedited consultations in emergencies. It does not authorize waiving or bypassing the consultation in emergency circumstances. Furthermore, “this provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.” On its face, it does not apply to an economic emergency of the sort Trump has declared.

The final statutory target of Trump’s executive order is the Clean Water Act. The order directs the heads of all agencies to identify planned or potential actions the permitting for which may be subject to “emergency treatment” under law by the Army Corps of Engineers. These agency heads are directed to use the emergency procedures to “the fullest extent possible and consistent with the law to facilitate the Nation’s economic recovery”

Trump’s efforts to roll back environmental regulations have been well documented. Harvard Law School students have created a Regulatory Rollback Tracker, which provides information on each regulation affected by Trump’s campaign and the consequences of the rollback to the environment. The list of such rollbacks covers several pages.

Trump’s hostility to environmental regulations can be traced to the strong relationship he has developed with the energy industry, and particularly wealth energy industry donors, and also the Republican Party’s historic aversion to regulation. But now he has a compelling new reason – the threat of a recession to his reelection chances. The June 4 executive order is sure to come under legal fire from environmentalists, but Trump’s anxiety about his reelection may have created a fatal flaw in the order. While he declared the COVID-19 pandemic to be a national emergency, he did not declare the economic recession that followed the pandemic a national emergency. It is doubtful that he could have done so.

Some observers are not convinced this order will have a large negative impact on the environment. They point out that federal agencies already have emergency procedures to permit expedited review, but none of these permit ignoring the statutes or waiving an otherwise required review. If the agencies fail to follow their own procedures, their actions will be invalidated.

In the end, the June 4 executive order may simply be more flailing on Trump’s part in a manner that gets maximum heat and light but does little damage. Constitutionally, the President does not have the authority to overrule or temporarily nullify acts of Congress that have become law. It is a certainty, however, that Donald Trump is the least environmentally sensitive President in modern history. He will do whatever damage he can. He has to go.

Trump’s Obstruction of Congress: The Real Constitutional Threat

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In the ongoing trial of Donald Trump, the House Managers have laid out a case on two articles of impeachment. Article I – abuse of Presidential power – received the most time and attention by the House Managers and the President’s defense team. However, Article II, charging the President with obstruction of Congress, describes conduct that will have more far reaching consequences for the nation. At the President’s direction, the White House and federal agencies have refused to produce a single document. He has also directed key federal employees to refuse to appear for testimony. If a President can unilaterally declare impeachment proceedings in the House to be invalid, and on that basis deprive those proceedings of crucial evidence, what is left of the impeachment power?

But unilaterally declaring the House impeachment proceedings invalid is exactly what the President, through his White House Counsel, did in an October 2019 letter. The letter asserted that the impeachment inquiry was invalid because the House failed to take a vote to authorize an impeachment inquiry before two of its committees began issuing subpoenas. The letter cited precedent from earlier impeachments. The real objection was that the House had not taken a preliminary vote making House members who supported it politically accountable. Therefore, according to White House Counsel Cipollone, “President Trump cannot permit his Administration to participate in this partisan inquiry.”

As we have heard, the Constitution bestows on the House of Representatives “the sole Power of Impeachment.” What does this really mean? It means that no other branch of government – neither the Senate, nor the courts nor the President — can decide what constitutes “Treason, Bribery or other high Crimes and Misdemeanors” for purposes of impeachment.

Furthermore, Article I, Sec. 5 of the Constitution gives the House, not the President, the power to determine the rules of its proceedings. No other branch of government can insist upon or determine the rules by which the House exercises its power of impeachment. Even if all prior impeachment inquiries started with a House vote, which is dubious, it is not for the President to decide that the House is bound by this precedent. There is nothing in the Constitution requiring such a vote.

The President’s defense team has argued that several privileges were involved in the President’s decision to defy subpoenas for witnesses.  Among these is executive privilege, which is the privilege of the President to maintain the confidentiality of communications between himself and other members of the executive branch, usually involving sensitive military or national security matters.  Executive privilege is rooted in the doctrine of separation of powers. But when President Nixon tried to shield the Watergate tapes by a blanket claim of executive privilege, the Supreme Court rejected the claim. As with any other claim of privilege against producing relevant evidence, the assertion of executive privilege must be specific.

The problem with executive privilege as an excuse for a blanket refusal to cooperate is that is has never been asserted either generally or specifically.  The White House Counsel’s letter referred to privileges the President could potentially invoke but did not actually assert executive privilege.  Even in the Senate trial so far, the President has not asserted executive privilege. To do so, the President would have had to identify the particular document or communication containing privileged material.

Even more fundamental, a privilege that has been waived cannot be asserted.  In the House Manager’s brief, they state

Regardless, executive privilege is inapplicable here, both because it may not be used to conceal wrongdoing – particularly in an impeachment inquiry – and because the President and his agents have already diminished any confidentiality interests by speaking about these events in every forum except Congress.

The President himself declassified the call record with President Zelensky.  He has asserted in public what he has and has not discussed with Ambassador Sondland, Chief of Staff Mulvaney and Ambassador Bolton about holding up security aid in exchange for investigations. This destroys privilege as to the subject matter of these communications.

If the House can be thwarted in its search for facts in an impeachment inquiry by the blanket refusal of the President Trump to cooperate, then the impeachment power will be neutered. There will be no sensitive matter on which a future President will not likewise make that same assertion.  The result will be that the power to check a reckless and lawless President will no longer exist. The power to subpoena material from the executive branch is essential for Congress to exercise the power of impeachment that it alone has.  As House Manager Schiff argued, without Article II (Obstruction of Congress) there can be no future Article I (Abuse of Power).

The first Article of Impeachment alleging abuse of power is serious.  It alleges a perversion of the power of the President into a tool for the President’s personal benefit at the expense of an ally. This seriousness of this conduct should not be minimized. But in terms of its long term damage to the Constitution, it pales before the second Article. We may finish the impeachment trial without a conviction on Article I, but if there is no conviction on Article II our constitutional power to check the executive will be in tatters.

What Are We Going To Do About It?

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Even before the upcoming public impeachment hearings, we know the facts. Despite the blizzard of falsehoods issued by Presidential tweet to cover up the crime – it was a “perfect call”, there was no quid pro quo — all these have been discredited, one by one, then abandoned. Most recently, Ambassador Gordon Sondland changed his earlier testimony and now remembers that he did tell a Ukrainian diplomat that military aid would be withheld if there were no investigation of Hunter Biden’s company.

We know this: the President used our money, not his own, to squeeze a desperate country into providing political dirt on Joe Biden, Trump’s possible opponent in the 2020 election. This extortion was intended to benefit himself, not the country. The military assistance he withheld in this shakedown had been allocated by our representatives in Congress for the fight against Russia in eastern Ukraine. Trump’s July 25 call with Ukrainian President Zelensky was so improper – so illegal – that even White House staffers were shocked and attempted a cover up. So the question is not what happened. Rather, the question is what are we going to do about it?

Trump’s apologists are flailing. One assertion is that the whole impeachment inquiry is tainted because we do not know the identity of the original whistleblower, and that person might be hostile to Trump. But it is completely irrelevant how the inquiry began or the sentiments of the person who began it if the inquiry has produced the truth – and it has. All of the major allegations in the whistleblower complaint have been corroborated by actual witnesses to the call.

Another argument is the standard “whataboutism.” What about Joe Biden? Why didn’t “they” do something about Biden when he publicly threatened consequences for Ukraine if a corrupt prosecutor were not removed? But Trump is President and Biden never was. Biden never took action on any such threat, if one were actually made, while Trump did. Whataboutism is simply an attempt to deflect attention from the conduct of the President with an argumentative tactic used on elementary school playgrounds.

Trump’s enduring support among his partisan base suggests that many people may simply be rejecting the plain facts. After all, politics operates at an emotional level at least as much as an intellectual one. Some of Trump’s supporters will be loyal no matter what. He is the leader of their team, their tribe. This causes them to reject uncomfortable actual facts and accept “alternative” facts. It has been happening this way nearly every day during Trump’s Presidency.

There is another segment who are beginning finally to acknowledge the facts about what Trump did – they have little choice. But they argue that Trump has committed only a small “political” offense that should not result in his impeachment or removal from office. As a general matter, it is legitimate to debate the seriousness of an offense when determining the punishment. In this case, however, Trump’s offense is not trivial. It involves corruption and abuse of power.

But wait, there’s more. The nation has just come through a contentious debate over the Mueller Report on interference in the 2016 election. Part of what Mueller and his team investigated was whether the Trump campaign or individuals close to the President conspired with Russia to produce and use unfavorable information against his then opponent Hilary Clinton. On July 25 could there have been any doubt in Trump’s mind that soliciting a foreign government to interfere in our elections was a seriously wrong thing to do? Yet this is exactly what Trump did in his call with Ukrainian President Zelensky.

I have written earlier that a special circle in hell is reserved for Congressmen and Senators who are smart enough know the damage Trump is actually inflicting on our system, yet who spin the facts to defend him or remain silent. It is said that these people fear the political consequences if they honestly evaluate the facts and conclude that Trump crossed the line. They are calculating what they stand to lose from holding Trump accountable even if they believe the Constitution and the good of the nation requires it. This is corrupt in itself.

Those of us in this part of West Virginia are relying on three elected officials to make the right call on this important matter: Congressman Alex Mooney and Senators Shelly Moore Capito and Joe Manchin. It will probably be the most important vote they take in their political lives.

Expecting Congressman Mooney to be a fair judge of the facts is a fool’s errand. He has taken every opportunity to cling to Trump’s coattails. He recently barged into a secure hearing room to disrupt a deposition that was not open to the public. Mooney’s claim that the procedures were unfair is absurd since they were basically the same procedures used in previous impeachment inquiries and Republican committee members were participating in the deposition. So now I expect Congressman Mooney to produce some other equally shallow reason to oppose holding Trump accountable. He’s just waiting for someone in the Republican leadership to tell him what that is.

Despite Congressman Mooney’s antics, it seems likely that the House will vote to impeach the President. That means a trial will be held in the Senate, where both of our Senators – one Republican and one Democrat – will have a vote.

Writing in the Washington Post, Jennifer Rubin said:

When a politician demands a private benefit (opposition research for a politician’s private use) in exchange for performing public act (releasing aid), that is called soliciting a bribe. That sort of mixing private gain with public conduct is precisely the definition of corruption. It is this sort of corrupt dealing that the impeachment clause in the Constitution contemplated when it refers to “treason, bribery or other high crimes and misdemeanors.”

If these facts are confirmed in a Senate trial, the only way our Senators could spare Trump from removal is if they conclude that the offense is not serious enough to justify removing the President. This is essentially what happened when President Clinton was impeached for illegal conduct that did not amount to a breach of national trust.

At this present moment we have a different situation. If Trump is not removed he will be emboldened to do more of the same to preserve his power and future Presidents may be as well. We know the facts. They are bad. What are we going to do about it?

Why We Should Not Wait Until The 2020 Election To Deal With Trump’s Misbehavior

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Democrats in the House of Representatives have decided they cannot ignore President Trump’s efforts to pressure Ukraine to produce dirt on Trump’s likely opponent in 2020. They have begun an impeachment inquiry, which may lead to the introduction and adoption of articles of impeachment in the House. Given the ample proof of Trump’s obstruction of justice in the Mueller report, resort to the impeachment remedy only now indicates how reluctant Democrats have been to take this step. There are huge political risks for the Democrats. Even now one can hear criticism of the move from those who ask why we just can’t wait until the 2020 election and let the voters decide whether Trump is guilty of a “high crime or misdemeanor?” But waiting until the 2020 election to deal with Trump’s conduct, up or down, would be a serious mistake. Here’s why.

Let’s first think about this idea in the abstract. Presidents are elected for four year terms. Much mischief can be done in that period. If a President commits an impeachable offense in the first six months of his tenure, the notion that the “trial” of this question should await the next election will enable him to remain in office for a lengthy period and commit offenses of the same or greater seriousness. And what of a President who commits an impeachable offense in the first six months of his second term?  The voters would get no chance to remove him by way of an election.

In the current situation, there are thirteen months until the 2020 election. If Congress does not immediately deal with the allegations, one way or the other, there will be no constitutional brake on Trump’s behavior. He will get the signal that Congress does not have the resolve to check his behavior, even though it breaks all norms. He will have clear sailing for more of his efforts to use foreign assistance to undermine his opponent in the critical run-up to the election.

The impeachment process requires the adoption of articles of impeachment in the House of Representatives, which is like an indictment. The impeachment question is then sent to the Senate. Article 1, Section 3 of the Constitution says “The Senate shall have the sole power to try all Impeachments.” What would deferring to the 2020 election be if not a decision to use another mechanism – the voters – to try the impeachment question?

But suppose we wait until the 2020 election and Trump is defeated. We would never know whether pressuring a foreign government to interfere in our elections is a “high crime or misdemeanor.” It would be impossible to know whether Trump’s election loss was because of the people’s judgment on the offense of for other reasons.  Likewise, if the President survived the election we would never know the people’s judgment solely on the offense.  It is certainly possible that other forces and factors could prevent voters from even considering the offense. Take, for example, what would happen if we suffer another terrorist attack between now and November 2020. The American people usually rally around the President as commander-in-chief in those circumstances.

The Founders recognized the danger of submitting the question of impeachment to the public. In The Federalist No. 65, Hamilton said that impeachment questions

will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Here Hamilton was arguing that the innocence or guilt of a President should be determined in Congress, not dictated by the latest poll or the next election.

Some Democrats believe that the surest way of removing Trump from office is letting him stand for re-election in 2020. This is because he can be removed from office by slightly more than a majority of voters, whereas he cannot be convicted in the Senate on less than a two-thirds vote. The Republican-controlled Senate does not seem likely to convict, at least on the evidence we now know. But those of us old to have lived through the Watergate hearings will remember that it was believed unlikely the House would even pass articles of impeachment. Instead, as the evidence was revealed in the House hearings, Republican support for the President began to erode little by little. Nixon resigned because he was told he would lose the House vote.

But here should be the showstopper for Democrats who believe that removing Trump in the election is a better option. Article I, Section 3, Clause 7 of the Constitution says that impeachment and then conviction in the Senate means removal from office and permanent disqualification from holding any other federal office. On the other hand, if the way we get rid of Trump is by defeating him in the 2020 election after he has served only one term, he can – and will – run again.