Trump Doesn’t Have a Monopoly on Lawlessness

The big story this week is of course Donald Trump’s inauguration and first wave of Executive Orders. Trump didn’t waste any time assaulting the Constitution, seeking revenge on his enemies, and rewarding his army of lackies with presidential pardons for a long list of bad people that includes the insurrectionists who attacked cops on January 6 and Ross Ulbricht, the founder of a website that facilitated drug smuggling and human trafficking with bitcoin.

But I’m going to have the next four years (barring removal of office for impeachment, the 25th amendment, or death) so I’m not going to spend a lot of time on that today. Instead, I want to say a few words about Joe Biden’s last few days and months in office.

I voted for Joe Biden twice. I thought he was a pretty mediocre president, but as a constitutional conservative, I could not stomach Donald Trump. I don’t regret either vote and Trump’s behavior in his second first week has underscored the fact that the man does not belong in the White House.

But that doesn’t mean that Joe Biden was a good choice either. And Biden’s last three months in office were in many ways the most problematic months of his presidency. The hubris and lawlessness of Biden’s lame-duck months gave Trump cover for his own excesses and showed why a large part of the electorate rejected the status quo.

Among Biden’s actions in his last days as president were deeming the Equal Rights Amendment to be the law of the land and granted a flurry of pardons and clemencies.

Let’s start with the ERA. The amendment was passed by Congress in 1972 but did not get the required 38 states to ratify within the time limit set by Congress. Three states ratified after the window closed, bringing the total to 38, but another six states rescinded their ratification. It isn’t clear that the ratifications after the time limit expired count and it also isn’t clear whether the rescissions count.

It is clear, however, that the president does not have the power to deem the amendment to be ratified. It is especially galling that Biden did so as he was leaving office in an action that has no chance of surviving into Trump’s presidency. The whole unconstitutional exercise was for nothing.

Also galling is the fact that Biden’s action on the ERA is a direct parallel to Trump’s Executive Order on birthright citizenship. Trump’s Order is no less an assault on the Constitution than Biden’s recognition of an unratified amendment, but Biden’s action does give Trump political cover.

“See? What about Biden and the Democrats? They did the same thing.”

Trump’s Executive Order flouts the plain language of the 14th Amendment when it states “the privilege of United States citizenship does not automatically extend to persons born in the United States: (1) when that person’s mother was unlawfully present in the United States and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States at the time of said person’s birth was lawful but temporary (such as, but not limited to, visiting the United States under the auspices of the Visa Waiver Program or visiting on a student, work, or tourist visa) and the father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”

Okay, so I lied. I’m going to criticize Trump too. The language of the EO is a frontal assault on the Constitution which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Are illegal immigrants subject to the jurisdiction of the United States? The answer to this question is obviously yes because they can be arrested, prosecuted, convicted, and jailed. Mic drop.

There is also the pesky detail that Trump’s Order is effective 30 days from the date of publication. (By the way, I’m aware that people normally stop after the mic drop, but indulge me.) Are constitutional rights subject to arbitrary sunset dates set by a president? We should hope not. This sounds like a violation of the Equal Protection Clause among other things.

The Trump EO is a Hail Mary to the Supreme Court. He will try to generate a test case for the reinterpretation of the plain language of the Constitution and cross his fingers that there will be enough activist judges to uphold his decree. I’m old enough to remember when Republicans opposed judicial activism, but that was a different party.

Here’s a riddle for supporters of Trump’s unconstitutional birthright Order: What do you call the American-born child of illegal immigrants?

Answer: An American citizen.

And then there are the pardons and commutations. Biden issued pardons for a host of presumed targets of Trump’s vengeance, his own family members, and a number of criminals such as Leonard Peltier, the American Indian activist serving a life sentence for the murder of two FBI agents in 1975.

For starters, I opposed the pardon of people like Liz Cheney and Anthony Fauci because they committed no crime. It lends an air of undeserved credibility to MAGA conspiracy talking points when these people are pardoned for doing their jobs and adhering to traditional conservative principles. I do accept that Biden was trying to do the right thing here, but I think it may make matters worse. Better to let them have their day in court (if Trump & Co. could even find enough evidence to indict them) and let Trump’s lies about them receive an open-air examination.

As Supreme Court Justice Louis Brandeis once said, “Sunlight is said to be the best of disinfectants.”

More problematic are Biden’s pardons and commutations of unrepentant criminals including 2,500 nonviolent drug offenders.

Make no mistake, Donald Trump would have pardoned his January 6 pawns no matter what Biden did, but Biden’s abuse of presidential clemency gives Trump’s actions legitimacy that they would not have otherwise. Both Trump and Biden have politicized the pardon power to the detriment of the country.

Given the choice, I’d still vote for Joe Biden if Trump was the only viable alternative, but Democrats really need to get their act together. It’s difficult to portray Trump as the threat to democracy that he actually is when your own guy is doing dumbed-down versions of Trump’s abuses of power. Democrats have historically had a hard time abiding by the rule of law, and that is a big part of why we got Trump… again.

Donald Trump is back and that fact alone is enough to destroy Joe Biden’s legacy. After all, the main purpose of electing Biden was to send Trump packing. It was the Biden White House’s dishonesty with his health issues and attempts at advancing the liberal agenda that played central roles in Trump’s election win.

Behavior like we’ve seen from Biden in his last few months is a large part of the reason why I can’t consider myself a Democrat despite being pretty hostile to today’s Republican Party. A further reason is that Democratic policy isn’t any more conservative than what the Republicans have to offer.

Donald Trump is already making the same mistake that Biden made in assuming that a narrow win means a mandate for a far-right wish list. Trump was elected largely to lower consumer prices. He was definitely not elected to rename the Gulf of Mexico or wage war on Greenland.

The Trump II Administration was already degenerating into a train wreck even before the inauguration. Now his incompetency and corruption will be on full display for the country and the world with almost no moderating voices to temper his worst instincts.

America is about to go Full Trump. And you should never go Full Trump.

But that may be what America needs. Going Full Trump may generate the antibody response that finally gets America off the MAGA habit.

I don’t think that Americans are going to be pleased with what is essentially a government by Fox News, for Fox News, and of Fox News.

I don’t think that America will be amused when it finds out that Trump’s secret plan to end the Russo-Ukraine War was saying “pretty please” to Vladimir Putin. I don’t think America will be pleased with the higher prices and shortages that stem from the resumption of Trump’s tariff wars. I don’t think America will be pleased with the immigration crackdowns and deportations of hardworking immigrants (not all of them illegal) who make up a large part of America’s workforce. I don’t think America will be pleased with a government that needlessly antagonizes our allies and flirts with dictators. I think Trump fatigue will set in pretty quickly with the steady stream of inane, offensive, and incompetent behavior that we are about to be subjected to.

Democrats need to be the antidote to that, rather than a watered-down version of it.