December 21, 2019

Two new pieces of information on the Ukraine/impeachment crisis. The White House is trying to say that Trump has not actually been impeached because House Speaker Nancy Pelosi has not transmitted the articles of impeachment to the Senate. One of the four legal scholars the House Judiciary Committee invited to testify, Harvard Law Professor Noah Feldman, made this argument in Bloomberg on Thursday. Feldman’s opinion is not widely shared. Harvard Law Professor Laurence Tribe, my go-to for constitutional law, says it’s flat wrong. The White House is trying to force Pelosi to send over the articles, so Senate Majority Leader Mitch McConnell (R-KY) can bury them quickly, without calling the witnesses that Democrats and a majority of Americans want to hear.

They need a way out. Today’s second piece of information was a 146-page document dump from the Pentagon in response to a FOIA (Freedom of Information Act) request by the Center for Public Integrity. These documents covered the president’s infamous July 25 phone call with Ukraine president Volodymyr Zelensky, in which Trump asked for “a favor” before he released congressionally approved money for Ukraine’s military defenses against Russian aggression.

The documents are heavily redacted, but show Trump asking about funding on June 19, just after reading about the Ukraine aid in a news article. Then, immediately after the July 25 phone call, Michael Duffey at the White House Office of Management and Budget, overseen by acting Chief of Staff Mick Mulvaney, ordered the Pentagon to suspend the military aid Congress had appropriated for Ukraine. Worse, Duffey noted the “sensitive nature of the request” and asked his Pentagon contacts to keep it “closely held to those who need to know to execute the direction.”

Duffey and Mulvaney are both on the list of witnesses Senate Minority Leader Chuck Schumer (D-NY) wants to testify in the Senate impeachment trial.

The documents also show that Trump released the aid on September 11, after he learned that there was a whistleblower complaint about his withholding of it. Duffey wrote an email that night saying he hoped the release would take place quickly and that he was “glad to have this behind us.”

It is no wonder the White House, and Senate Republicans, do not want Duffey and Mulvaney to testify.

One of the things that flew under the radar while we focused on impeachment in the last few days was that on Wednesday, a federal court struck down the central pillar of the Affordable Care Act (Obamacare). Two justices, one appointed by Republican George W. Bush, and one by Republican Donald Trump, said that the part of the law requiring people to have insurance—the “individual mandate”—was unconstitutional. A third, appointed by Democrat Jimmy Carter, disagreed. The issues surrounding this decision are complicated, but at stake is whether or not the fact the court found this aspect of the law unconstitutional will lead to the entire law being declared unconstitutional.

This has a much larger meaning.

It is, in fact, a question about the role of government in American society.

In the 1930s and 1940s, after the unregulated capitalism of the 1920s had sparked the Great Depression, Americans rallied around the idea that the government had a duty to keep the economic playing field level between those at the bottom of society and those at the top. Under Democratic President Franklin Delano Roosevelt, the government began to regulate business, provide a basic social safety net, and promote infrastructure. It regulated our financial system to guarantee no one could game it based on whom they knew. We got new laws to regulate minimum wages and maximum hours for workers, workplace safety, Social Security and welfare relief. We got bridges and roads and schools and libraries.

Under this “New Deal for the American people” as FDR put it, the nation thrived. Business boomed, wealth became far more evenly distributed than it had been in the 1920s, and standards of living rose. Americans of all parties liked the new activist government that had restored American prosperity after the Depression. This way of looking at the world became known as the “liberal consensus,” and virtually all Americans thought that government intervention in the economy to keep the wealthy from abusing their workers and taking the majority of the nation’s capital, as they had done in the 1920s, was a good thing.

But not everyone agreed. Some clung to the system of the 1920s, in which businessmen had run the government. These folks worried that government intervention in the economy would keep men from running their businesses as they saw fit. Between regulations and taxes they would be unable to accumulate capital as they otherwise would be able to, and would be less able to invest in new technologies and endow museums and libraries. They saw themselves as enlightened patriarchs protecting their workers—so long as those workers behaved—and believed government intrusion into their affairs was essentially a form of communism that would destroy American individualism.

So they set out to destroy the liberal consensus. Gradually they took over the Republican Party. Now they control it.

Americans have not been able to wrap their heads around this ideological conflict. They assume that the policies of the liberal consensus which have underpinned our lives since the 1930s-- Social Security, well-maintained bridges, and food safety laws, for example-- will always be here. The people who hated the liberal consensus have always been a small minority: most Americans like government regulations, a social safety net, and infrastructure. We disagree about how those things should be done, but generally we agree that they should exist. Even anti-government activists famously say things like “Get your government hands off my Medicare.”

The people in charge of today’s GOP reject this premise altogether. They believe that an activist government, supported by tax dollars, weakens American individualism and sets the nation back. Even if voters want things like national healthcare, they oppose such activism on the grounds that anything not expressly set out in the Constitution is off limits. This strict construction, as it is called, severely limits the role of the government in national affairs.

In addition to strict constructionism, GOP leaders combat government activism through tax cuts, like the ones Trump’s Republicans passed in 2017. Tax cuts keep the national budget deeply in the red, enabling them to accuse Democrats of being fiscally irresponsible when they want money for national programs. The plan is not to balance the budget, as they argue; it is to guarantee that we get rid of the activist government they believe is weakening America.

Most people don’t recognize that there is a larger ideology behind the policy debates over taxes or health care or business regulations that we hear about. I have written here before about the recent Gundy v. United States decision, in which Supreme Court Justice Brett Kavanaugh signaled his willingness to help the other four conservatives on the Court dismantle the delegation doctrine, adopted by the Court during the New Deal, saying the government can delegate policy making to bureaucracies. Overturning that doctrine would destroy the modern administrative state. Congress, rather than departments and bureaus, would have to debate every single aspect of every single regulation.

The reexamination of the delegation doctrine, like this latest court decision over the Affordable Care Act, is a front in the struggle between two ideologies: the one saying that the government has a role—any role— in keeping the playing field level in the American economy, and the other, saying it absolutely does not and that we must trust our leaders to do what is best for all of us.



Not impeached:

Document dump:


Playwalled, but a synopsis:



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