2 days ago
On The Making Of King Donald
After decades of watching the US prop up dictatorships in Central America, South America and the Middle East, there's a certain irony in seeing authoritarian rule play out on the streets of Los Angeles. No doubt, Donald Trump's deployment of the National Guard - and the US Marines! - to quell what were (initially) peaceful protests against his harsh immigration policies has been deliberately provocative. That's the point. The enemy is whoever opposes him.
As for the legal basis for the steps he has taken…Trump's actions appear to violate the terms of the 1807 Insurrection Act, the 1878 Posse Comitatus Act, and several sections of the US Code of federal laws. As you might expect, all of these legal mechanisms limit the ability of a US President to deploy US military forces on home soil, as a tool of civilian law enforcement.
So far, the White House attitude to these legal guardrails has been…a contemptuous so what? No real surprise about that, either. Last year, the US Supreme Court decision in the Trump v US case - one of the worst rulings the Supreme Court has ever made - gave President Trump the powers of an absolute monarch, by exempting him from the laws that govern the conduct of every other American. When faced with Trump's attempt (a) to prevent the lawful handover of power to the winner of the 2020 election and (b) to hijack the US Constitution, the Court simply caved in: 'The former president is entitled to absolute immunity from criminal prosecution for actions within his 'conclusive and preclusive constitutional authority.''
Absolute immunity? Meaning : if President Trump calls his criminal actions 'official' then bingo, they become legal. You almost have to feel sorry for Richard Nixon. If only this same licence had been available to him, Nixon would have never had to resign over Watergate. In vain, Nixon argued in a subsequent TV interview with David Frost that 'When the President does it, that means its not illegal.' No one believed him. Yet last year, the Supreme Court conferred those powers on King Donald. No wonder he's using them now in Los Angeles, and elsewhere.
In the face of the Trump v US precedent, the threats by California governor Gavin Newsom to sue the President over the deployment of the National Guard in California without reason or invitation, are bound to fail. Moreover, the 1807 Insurrection Act does give the President some limited ability to deploy the military, even without the consent of the state governor. During the civil rights era, presidents Dwight Eisenhower and John F. Kennedy both used the Insurrection Act to justify their sending in of US troops to enforce the country's laws on the de-segregation of schools, despite fierce opposition from the governors of Alabama and Mississippi.
It is not as if the Supreme Court stopped at Trump v US. Earlier this year, the Court further extended Trump's powers by granting him the interim authority to fire the heads of independent state agencies (eg the National Labour Relations Board) at will, until such time as lower courts rule on the matter, and until the issue has finally wound its way back up to the Supreme Court. That process will take years. Meanwhile, Trump has been handed unlimited power to fire his opponents in state agencies, and hire his minions in their place.
Making the federal government's independent regulatory agencies bend to his will is part of Trump's plan to concentrate all of the effective executive power solely in the White House. In doing so, he will demolish the system of checks and balances that has under-pinned America's democratic political system since the country's inception.
Trump's exercise of these powers also pose a threat to global economic stability. Thanks to the same interim authority granted to him by the Supreme Court, there is no legal barrier to stop Trump from firing Jerome Powell (the chair of the US Federal Reserve) without a reason, beyond Trump's desire to make US monetary policies serve his own short-term political interests.
Here's why he might do it. As yet, Trump's tariffs have not fed through substantially into higher prices because many US firms are still burning through the inventories on their shelves. That means Powell can't cut interest rates until he sees the full extent of the inflationary spike when US firms like Walmart re-stock over summer, at tariff-inflated prices. Trump is not pleased about the delay, since he will (justifiably) cop the blame from angry consumers. Currently, the market turmoil that the firing of Powell would create seems to be the only thing that's staying Trump's hand.
Thankfully….despite the abject complicity of the Supreme Court, not every part of the US legal system is currently bowing to Trump. The US Court of International Trade for instance, hears disputes over trade practices. In late April, as the Brennan Center has pointed out, a panel of three judges - appointed by Presidents Reagan, Obama, and Trump — ruled that most of Trump's tariffs are unlawful. As the Center's Michael Waldman has pointed out, the US Constitution clearly states that only Congress - not a President acting alone - can impose such tariffs :
The International Emergency Economic Powers Act provides presidents lots of specific tools — just not this one.A few hours later, another federal judge reached a similar conclusion. However, an appeals court kept the tariffs in place, for now.
Inevitably this issue too, will head on back to the US Supreme Court (yikes) for a definitive ruling. Point being, Trump's legal justification for what he is doing is pretty shaky - or would be - if the Supreme Court wasn't enabling Trump to over-ride so many of the precedents set over the past century or more. The three arms of the US political system - Congress, the Presidency and the Courts - are supposed to act as effective balances on each other, along with the legal precedents built on the foundation of the US Constitution. Trump is dismantling that entire system.
Unwinding the US Constitution
The unwinding of those core US traditions began with the rise of the 'originalists' on the Supreme Court. This legal school of thought - once marginal, and initially championed on the Supreme Court bench by Antonin Scalia - now dominates the reasoning of the six judges (out of nine) who comprise the Court's conservative majority.
According to the originalists, judicial decisions need to be grounded in the text and history of the Constitution, as conservatively (or, as they would say, neutrally) interpreted. In practice, this approach has led to a highly selective originalist opposition to many of the laws and precedents ( e.g. the right to abortion enshrined in Roe v Wade, the right of the accused to be informed of their rights enshrined in Miranda v Arizona) that are not explicitly stated in black and white in 1792, in the text of the Constitution. A strict originalist reading would mean that so many modern rights (e.g. to contraception?) can be jettisoned as having been the alleged by-product of years of ad hoc judicial activism.
In reality, the originalist justices - e.g. justice Samuel Alito - actively pick and choose what they see as being the founding fathers intention in the text, how they read subsequent history, and what roles for legal precedent they are willing to recognise. (Alito skated around the right to contraception in his Dobbs ruling that scrapped Roe v Wade by simply asserting that abortion is different. Uh, OK.) As even conservative commentators on the Court have pointed out, a division is emerging between the originalist hardliners (Alito, Clarence Thomas, Neil Gorsuch) and the two conservative but more moderate judges (Brett Kavanaugh, Amy Coney Barrett).
As for Chief Justice John Roberts…he has said publicly that he is not an originalist, although he often sides with the hardliners. It's a moot point, anyway. After all, it was Roberts who (a) opened the floodgates to corporates buying US elections by writing the 2010 Citizens United decision and who (b) took the leading role in the 2013 Shelly County v Holder decision that effectively gutted the 1965 Voting Rights Act, which had been the crowning legislative achievement of the American civil rights era.
Those cases have been two of the most socially damaging decisions made by the Court in the modern era, right up there with the overturning of Roe vWade. My point being, the Roberts Supreme Court was already on its sick bed before the Trump era began, but the close and partisan links that Alito and Thomas (in particular) have with the Republican Party (and its major donors) have also severely compromised the Court's credibility. Alito has even flown an upside down flag (a symbol of support for the Jan 6 Capitol rioters) from the porch of his Virginia home.
In the face of such partisan behaviour, it's probably naive to expect any kind of moral or legal consistency. Yet even so…how can judges who claim to be originalists wedded to the Founding Fathers' intentions, be so openly supportive of undermining America's system of checks and balances, by handing unbridled power to the Trump presidency? Having the country ruled by an American monarch was exactly what the founders of the American revolution fought so long and hard, against.
Closer to home
Jerome Powell has not been the only independent central banker to come under political pressure in recent months. The full story about the resignation of RBNZ governor Adrian Orr will probably never be known, but the driving force seems to have been the decision by Finance Minister Nicola Willis to cut the Reserve Bank's operational funding by 25% annually, over the next five year funding period. That reduction amounts to a loss of $50 million annually over that period, down from $200 million in the current financial year. The Bank's capital expenditure would also be restricted to $25.6 million. A raft of OIA-released emails this week has covered the period surrounding Orr's resignation.
Having the politicians cut the operational spending of the 'independent' central bank by 25% and freezing it at that level for the next five years certainly looks like the actions of a government hellbent on dealing a significant blow to the bank's fabled independence. Yes, the Bank's operational spending and staffing levels had increased substantially since 2018 - although there is absolutely no reason to regard 2018 as being the gold standard on funding and hiring.
True, the RBNZ board had undercut Orr's position by agreeing to swallow the funding cuts that Willis was seeking - but since Orr had been governor during the last few years of an expansion that he strongly endorsed, Willis (and his own board) had placed him in an untenable position. And so, he resigned. Not without a fight though, as the OIA emails indicate. Reportedly, Orr had offered to accept a 16.5% funding cut and lose 100 jobs at the bank. Elsewhere in the de-classified correspondence, Orr gave his reasons for holding the line against the extent of the further cuts being proposed:
Orr…. linked a number of concepts which suggest how he came to a view about the funding level the bank of those was operational independence, which he strongly linked with sufficient funding. He said having sufficient funding is necessary for the bank to function effectively, meet its mandate, and maintain the operational independence required to make key decisions. He explicitly mentioned this independence is important for core central bank tasks, specifically monetary policy and prudential settings.
So was this a resignation based on principle? Had Orr's exit been engineered in part at least, by a government intent on restricting the central bank's operational funding - and related ability to function independently - for the rest of this decade? We will probably never know. Yet interestingly, Radio New Zealand - which is no stranger to having downwards pressure put on its operational budget - treated the resignation rather differently. RNZ business editor Gyles Beckford for instance, chose to attribute the resignation to Orr's 'somewhat volatile personality' before adding that Orr 'basically, he threw his toys out of the cot.' Nothing to see here folks, move on.
From Los Angeles, with love
All praise to the late Brian Wilson, and this late-career release was one of his most delicate, intricate compositions and performances:
Over the past week, L.A. musician Jessica Pratt and her band have performed in Christchurch, Wellington and Auckland. A reclusive presence on stage, Pratt's voice is so unusual and her music so well constructed that each element - percussion, sax, keyboards - took its turn on stage this week to add fresh colourings to songs that still remained subject to her own vision. From her most recent album, here's Pratt and her band on Stephen Colbert's Late Show, doing a live version of the single ' Life Is.' Note the 1960s 'Be My Baby' style drumbeats that kick the song into motion:
While Pratt's music is always intense and personal, her live sets this week also had an airy, floating quality reminiscent of late 1960s Brazilian tropicália. Traces of that movement were already evident on this live track recorded by KEXP back in 2015:
