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Daily Archives: November 10th, 2016


The founding fathers were not as naïve as you may think. Remember the Constitution is a living document and possibly many Congress members do not understand that even now after serving multiple terms. MA 
Nov 9, 2016 9:56 AM EST
( Updated
Nov 9, 2016 1:52 PM EST)
By
Noah Feldman
It’s all about the Constitution now. Republicans will control the White House and both chambers of Congress. They will be able to pass — or repeal — their preferred laws, because that’s democracy. But to the Donald Trump opponents worried about what his presidency will bring, know this: There will still be limits to congressional or executive action, limits dictated by the Constitution and enforceable by the courts. The Constitution is designed to resist the tyranny of the majority. James Madison’s machine of constitutional protection is about to kick into gear.
The Bill of Rights and the principle of equal protection give the main limits on government action, but the list of enumerated rights alone doesn’t capture the purpose of the system. Most crucially, free speech and equal protection are supposed to preserve the capacity of electoral losers — Democrats this time around — to continue to participate in government.
That means Trump and the Republican Party can’t stop their political opponents from expressing their views. They can’t jail opponents in violation of habeas corpus. And they can’t adopt laws that discriminate on the basis of race or sex or religion or national origin.
The good news is that the courts as presently configured are overwhelmingly likely to enforce these restrictions. Start with the First Amendment jurisprudence. Today’s judicial conservatives are more likely to be free-speech absolutists than judicial liberals. I have great confidence that Supreme Court Justice Clarence Thomas, for example, would continue to apply his strongly speech-protectionist reading of the free-speech clause against laws passed by a Republican Congress, and that he would have no trouble getting a majority for his approach.
As for equal protection, the deepest judicial divisions for several decades have been over affirmative action, which conservatives say amounts to prohibited discrimination. There’s been much less disagreement about whether laws that facially discriminate on the basis of race are permitted: The consensus is that they are not unless justified by a compelling interest and narrowly tailored to it. A Republican-passed law that discriminated overtly would almost certainly be struck down.
True, the justices have sometimes divided about whether laws that are facially race-neutral are actually discriminatory. It might be hard to get consensus about such laws. But once the Supreme Court is back to full strength with the appointment and confirmation of a conservative to fill Antonin Scalia’s seat, the swing vote is going to be Justice Anthony Kennedy once again. And as the gay-rights cases demonstrated, Kennedy is acutely attuned to the value of human dignity. He’s also made it extremely clear that he has no interest in reversing Roe v. Wade.
If Trump gets to replace a liberal justice — Ruth Bader Ginsburg (age 83) or Stephen Breyer (78) — then the court would have an outright conservative majority. Conceivably, that could lead to revisiting decisions like Roe v. Wade or the gay-marriage decision, Obergefell v. Hodges.
But it’s extremely unlikely that the court would fundamentally roll back either of these rights. Despite its unpopularity, Roe has proved stunningly durable over the 43 (!) years since it was decided. Reversing it at this point would mark the court as wildly disrespectful of precedent. Chief Justice John Roberts has repeatedly signaled that he considers such extreme activism to be distasteful. And as a practical political matter, a reversal of Roe would fuel backlash against Republican candidates.
Gay marriage is, of course, a much newer right, and it would be easier for a conservative majority to overturn Obergefell, which has not yet acquired the patina of precedent. Yet the small-c conservative aspect of the Obergefell decision, with its celebration of the bourgeois institution of marriage, renders it much safer than might otherwise be thought. There would also be the tremendous practical problem of what to do about thousands of gay people who are already married — not to mention the further practical difficulties associated with gay marriage being recognized in some states but not others.
This is not to deny that a conservative Supreme Court could render strongly conservative decisions on a wide range of issues. It could, and it would.
Rather, the point is that even a conservative court would police the boundaries of legislation to preserve the basic structures of fundamental democratic rights. It might not do so aggressively, but it would still impose limits on Congress and the president.
Why am I so confident the courts would play their designated role of protecting the minority from the tyranny of the majority? The answer lies in the power of the institutional culture of the judiciary and of the rule of law.
There are many controversial issues in American legal thought, and there exist strongly conservative views on all of them. But even the most conservative judges and lawyers believe today that one purpose of the Constitution is to protect against majority oppression and that it’s the job of judges to make it do so.
There is good reason for legal conservatives to celebrate the election results and for legal liberals to deplore them. And if the court goes conservative, there will be plenty of opportunities for conservative justices to push their agenda.
The crucial takeaway, however, is that the basic rights and the rule of law aren’t going to disappear because Donald Trump was elected. The Constitution was built for our situation. It will endure, whatever challenges it may face.
(Corrects age of Ruth Bader Ginsburg in seventh paragraph. Corrects first paragraph to remove inaccurate reference to the last time Republicans controlled the House, Senate and White House.)
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net
To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.

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Mitch McConnell is elated(?) or does he now have the foil he needs to continue his divisive and self serving ways. As an aside : would you trust this person with your children’s future? MAERICA WERNER
Associated Press November 9, 2016

More Elated congressional Republicans pledged swift action Wednesday on President-elect Donald Trump’s agenda as they heralded an extraordinary new era of unified GOP control in Washington.
“He just earned a mandate,” House Speaker Paul Ryan of Wisconsin declared of Trump. “We are going to hit the ground running.”
Said Senate Majority Leader Mitch McConnell of Kentucky: “We would like to see the country go in a different direction and intend to work with him to change the course for America.”
Republicans saw their majorities in the House and Senate reduced, but not by much, as Democrats’ hopes of retaking Senate control vanished. And though Ryan and McConnell both had well-publicized reservations about Trump, both were quick to declare that the newly elected president deserved the credit.
“Donald Trump pulled off an amazing political feat. He deserves tremendous credit for that,” said Ryan, who initially refused to endorse Trump and only last month declared he’d no longer defend him. “It helped us keep our majorities, but it also showed the country that people don’t like the direction we were going.”
First up would be repealing President Barack Obama’s health care law, something Republicans have already shown they can get through Congress with just a narrow Senate majority. What they haven’t done is unite around a plan for ensuring that the 20 million who achieved health care coverage under the landmark law don’t lose it.
Republicans also celebrated the opportunity to fill the existing Supreme Court vacancy, and potentially more to come, with “constitutional conservatives.” McConnell was being widely praised for his strategy, once seen as risky, of refusing to act on Obama’s nominee to replace Justice Antonin Scalia, who died last February.
And Republicans pledged to try to unwind any number of executive moves by Obama, including tougher clean air rules on power plants, looser restrictions on travel to Cuba, and tougher rules on sleep for long-haul truckers, among others — “Every single one that’s sucking the very life out of our economy,” GOP Sen. David Perdue of Georgia said in an interview.
That threatened to wipe away key areas of progress highlighted by Democrats under the Obama administration.
Some of Trump’s goals could be harder to achieve. A wall on the southern border is estimated to cost $10 billion to $20 billion, money that Congress may be unlikely to provide given that cooperation from Democrats would be necessary.
Indeed the Senate Democratic minority stood as the only legislative barrier to Trump’s goals, since 60 votes are required for most consequential moves in the Senate.
Republicans were poised to end up with 52 Senate seats after Sen. Kelly Ayotte, R-N.H., conceded to Democratic Gov. Maggie Hassan in their close race. That assumes the GOP wins a December runoff in Louisiana, as expected. Democrats managed to pick up only one other GOP-held Senate seat, in Illinois, a devastating outcome for a party that went into Election Day with high hopes of holding the White House and winning back Senate control.
In the House, Republicans were on track to lose a maximum of nine seats, an unexpectedly modest reduction to a wide GOP majority that now stands at 247-188, including three vacant seats.
“We kicked their tails last night,” said GOP Rep. Greg Walden of Oregon, head of the Republicans’ House campaign committee.
Trump’s extraordinary win appeared to be going far to heal divisions within the GOP, as even Republicans who’d long harbored doubts about him offered warm pledges of support.
Here and there, notes of caution were sounded, as a few Republicans made clear that Congress would be asserting its constitutional prerogatives as a check and balance on the executive, following what Republicans viewed as overly expansive use of executive power by Obama.
“It’s just our constitutional duty to keep the executive branch in check,” GOP Rep. Todd Young, the newly elected Republican senator in Indiana, told reporters in Indianapolis.
Yet McConnell appeared to invite executive action by Trump, suggesting he should be exploring what kinds of “unilateral action” he could take — to undo unilateral actions by Obama.
___
Associated Press writers Brian Slodysko in Indianapolis and Matthew Daly and Andrew Taylor in Washington contributed to this report.

The beginning of a change has begun. The recent elections have brought protests across the country but more important is the reality of a Trump Presidency. There are many things the President can change unilaterally but as many or more that cannot be altered without Congress. The real issues (so to speak) are the statements made during the election, the alt-right and Racist groups emboldened by Trump along with the potential conflicts of interests with Trump’s business interests. It must be made clear that Donald Trump has dealings with  many of the countries that he has listed as the cause of lost jobs in America. The campaign rhetoric is out there and cannot be retracted or altered to suit. The issue now is preparing  or perhaps pushing for change in the Congress. The Congress is the real cause we all need to sign on to. The long serving Congress has the sense that their positions are a calling and not a service position (no difference than hotel worker). It is unfortunate that we cannot fire the Congress without an election where the lies sound good but hide what is really happening.  Look at some of the things our Congress has done to persuade (?) us that they are open and above board: C-Span-there is nothing happening on C-span that is of consequence, the real work ids done in the halls and back offices. You may or may not remember when the issue of cameras in the Senate and House of Representatives, there was much resistance to it by Congressional leaders but eventually the cameras were put in place. With the country satisfied on that issue the Congress went underground to continue doing THEIR business, not OURS. If we as ordinary people cannot see the fallacy of this past election and the gleeful hand wringing   of  a Congress that feels they have a shill to do what they want, then we are already lost. I am stating here and now that my goal is to vote against any politician who cannot definitively tell me what they have done good or bad. Sound bites and politispeak  will not work for me and they should not work for you. Congress should!

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