The Three Branches of Our Federal Government: Trump, Bannon & Pence

New sign in the U.S. Holocaust Museum, Washington, D.C.  

Generally, the electorate gives an incoming president the benefit of positive expectations and forgiveness for “beginner’s” missteps. “He just moved too quickly, but it will settle down; give him some time.” “He’s just trying to do what he campaigned he would do, nothing more.” “He is just draining the swamp, and those embedded bureaucrats are committed to stopping him.” “We elected him because we wanted a strongman to ‘just do it.’” Court orders can be “inconvenient truths” to presidents with firm determination.

Donald Trump’s superhero, our seventh president Andrew Jackson (his portrait now hangs in the Oval Office), had no problem turning against even a Supreme Court decision he found distasteful. He purportedly told Chief Justice John Marshall, “You made the law; you enforce it.” A powerless Marshall could only watch. Abraham Lincoln ignored Chief Justice Roger B. Taney’s order finding unconstitutional Lincoln’s suspension of habeas corpus rights in 1861, early in the Civil War. Defying the highest court in the land, however, is as rare as hen’s teeth. So what would the electorate expect from a president who almost never admits missteps, loves to double down, facing federal trial court (a lower court) orders enjoining significant portions of his executive order travel ban? Go back to the drawing board? Of course not.

Indeed, the Trump administration made clear that it would defy federal court orders that attempted to limit or repeal significant portions of his January 27^th travel ban. “Hours after a federal judge issued a stay on President Donald Trump's executive order temporarily restricting entry to the U.S. from seven Muslim-majority countries, the Department of Homeland Security (DHS) and a senior White House adviser issued robust responses, emphasizing that the order remains in force.

“In a statement issued in the early hours of Sunday [1/29], the Department said: ‘President Trump's Executive Orders remain in place — prohibited travel will remain prohibited, and the U.S. government retains its right to revoke visas at any time if required for national security or public safety.’

“It added that the department will ‘continue to enforce all of President Trump's Executive Orders in a manner that ensures the safety and security of the American people.’” AOL.com, January 30^th. That here have been zero terrorism incidents fomented in the United States from the nationals from any of the named countries seems to have fallen on deaf ears.

And it was not just the federal courts that took issue with an executive order that, based on its authors’ rather unsubtle litany of statements targeting Islam itself, was rather clearly aimed at travelingMuslims seeking to enter the United States… even those who already overcame “extreme vetting” or otherwise had green cards or valid visas… including a couple of American citizens detained along the way. A First Amendment violation on its face. Acting Attorney General Sally Yates, who had served under both Republican and Democratic administrations, admonished those in the Department of Justice that they should not take steps to enforce the executive order because of its questionable constitutionality. The President’s immediate reaction? “Trump has fired the acting attorney general who ordered Justice Dept. not to defend president’s restrictions on immigration

“The White House in a statement said Sally Yates has ‘betrayed’ the Department of Justice by refusing to enforce the executive order and has named Dana Boente, U.S. attorney for the Eastern District of Virginia, as acting attorney general. Boente has said he will agree to enforce the order.” Washington Post, January 30th. “Betrayed”? Strong words. Boente instructed his new agency to follow the disputed executive order to the letter. Trump told the media that he had pre-cleared that executive order with the relevant Congressional committees having jurisdiction over the subject matter, which several prominent (Republican) committee chairpeople promptly denied. The Web lit up with challenges suggesting that perhaps that “poorly drafted and ambiguously presented” executive order was left ambiguous rather intentionally. Was this Trump’s chief strategist’s clear attempt to find a clear issue, expecting a federal court order challenging the validity of an implementing executive order, purposely to defy a federal court? Testing the limits? It sure appeared to be precisely what was intended. Was this a mini-coup that could lead to more? Strategist Steve Bannon – who was just appointed head of all national intelligence agencies (at the expense of members of the military, an unprecedented act) – was clearly the principal architect of the litany of executive orders pouring out of the White House.  Bannon left his leadership role at Breitbart News, formed in 2007 to push alt-right causes, to move to his most important White House appointment. His unabashed goal was to concentrate power in the presidency and use executive orders to accelerate change that would take entirely too long if pushed through our legislative system or be subject to constant challenge by federal courts. In short, Bannon was rather openly committed to undermining our constitutional system of checks and balances among the executive, legislative and judicial branches of our federal government. Bannon has Trump’s blessing to implement policies more directly, notwithstanding constitutional barriers to the contrary. Notably the definitions of the roles of the branches of government, the “due process” provisions of the 5th and 14th Amendments and the inconvenience of the free assembly, free speech and freedom of state-enforced religious requirements granted to us all under the 1st Amendment. Federal legislative power is granted solely to Congress under Section 8 of Article I of our Constitution. Article III, Section 2 created and confers federal judicial power exclusively to the courts. The executive branch has powers of appointment and defined veto power, subject, of course, to confirmation and veto-override power allocated to the designated branches of Congress. But presidents have resorted to quasi-legislative executive orders to push through action plans during times of gridlock or accentuated emergencies. But there is no clear emergency, and Trump has not even tested the legislative process under his aegis. The Trump administration appears to believe that it has a mandate to impose its campaign platform directly without resort to the legislative process or subject to judicial scrutiny. And then there is this nasty thing writing nasty stuff every time the Trump team stepped/steps over bright constitutional lines: the press. As Bannon had had success with his label wars (“Little Marco,” “Lyin’ Ted,” “Crooked Hillary,” etc.) during the presidential race, it was time to apply a pejorative label to the Fourth Estate. Press Secretary Sean Spicer made it clear that he would hold the press “accountable,” while Bannon told the press it need to learn how to keep its “mouth shut” while labeling them the “opposition party” (words echoed by Trump himself). While White House Press Secretary Sean Spicer, who has to work with the press daily, moderated a bit and suggested that the “press has a healthy role in a democracy,” he also noted that the mainstream press is "not the only game in town anymore."AOL.com, January 31st (as will be shown below). But Bannon is indeed clever, orchestrating the demise of each and every element that could possibly push against the new king. Piece by piece. He orchestrated the removal of most of the top bureaucrats in the Department of State. Federal employees are shaking in their boots as Bannon smiles knowingly. The conservative Wall Street Journal (January 30th) looked at one small change at a press conference, for example, that suggests a very big change for the relationship between this administration and those dedicated to writing about it: “Already we saw one small example, when press secretary Sean Spicer used his first press conference to pass on the Associated Press—by tradition the first to get a question—in favor of the New York Post. His second question went to the Christian Broadcasting Network. Mr. Spicer also introduced Skype ‘seats’ for journalists not in the room. All this is clever, because it expands the exercise of the First Amendment while diminishing the idea of a privileged Fourth Estate.” Trump then sent a less-than-subtle message to the major television networks by eschewing them as the venue for his Supreme Court nominee announcement (ultra-conservative 10th Circuit federal appellate judge, Neil Gorsuch), going online (Facebook) instead. Mike Pence is basking in his evangelical glow, pretty much assuring that religious constituency that overturning Roe vs Wade is almost a done deal. Fiat or an ultra-right wing supreme court justice pushed into power as a Republican Senate reverses its 60-vote cloture rule to a simple majority vote requirement? It’s called the “nuclear option” in the Senate. Let’s wait and see. 22 states are waiting to reinstate their anti-abortion statutes very quickly. “Climate change” is already gone from official government websites. So is the Spanish language version of the White House site. Pence is happy. If this pattern of marginalizing those opposed to Trumpist policies, Trump’s constitutional defiance, and embracing rule by fiat continues, the United States, already polarized into oblivion, will slip one further giant notch downwards – from its recently reduced status (according to the Intelligence Unit of The Economist) as a “flawed” democracy – to simply a flawed and dictatorial government.  I’m Peter Dekom, and I sincerely hope that history does not cast the period of “the American democracy” as beginning on July 4, 1776 and ending on January 30, 2017.