A tortured bad-faith reading of the Constitution

I had lunch today with my friend and debate partner. He opened with a debate he had with others. He and they rejected tomorrow as the founding of the country because in 1776 we were just a bunch of argumentative colonies, not a united country. So when can we claim the start of America the country? How many states were needed to ratify the Constitution? Yeah, the version with the Bill of Rights. Three-quarters of the original colonies? Two-thirds? So I looked it up. New Hampshire was ninth when it ratified the Constitution on June 21, 1788. Virginia was tenth four days later on June 25, 1788. That was enough for either threshold. Rhode Island, the last, didn’t get to it until May 29, 1790, well after George Washington started his term as president on April 30, 1789. The Supreme Court ended its term and released its rulings on some big cases. A week ago Thursday Lisa Needham of Daily Kos reported the Court was very good at supporting the nasty guy’s racism. Which means non-white immigrants will get the shaft. The decisions were: First, remove due process protections for green card holders. That will lead to deporting people who have come legally. Second allow the elimination of a way to apply for asylum. Refusing entry for people fleeing for their lives (which is why they are seeking asylum) is just cruel. Third, allow the nasty guy to eliminate Temporary Protected Status for Haitians and Syrians. TPS for these countries was set up because the countries are not safe and they aren’t any safer now than when TPS was granted. And Venezuela, likely next on the nasty guy’s list, just suffered a double earthquake that has killed at least 2,500 people. Needham wrote on the Mullin v. Al Otro Lado decision about asylum claims (though it could apply to all three) written by Justice Alito:

In the ruling, Justice Samuel Alito goes through a tortured bad-faith reading of immigration statutes to get to his decision that the administration doesn’t need to process asylum claims if it doesn’t feel like it.

In this case Alito wrote that an asylum seeker must actually enter the US and if a US agent prevents them from stepping a foot across the border, oh well, too bad.

On its face, this is a dispute about how to interpret statutes. In reality, it means that the United States is free to refuse to ever let anyone apply for asylum for any reason—which was always the goal of the Trump administration. As Justice Sonia Sotomayor points out in her dissent, this is an abandonment of the policies adopted by the United States and other countries following World War II.

Needham points out additional ways all three rulings are absurd. Alito had a goal in mind and reasoned his way to it no matter what law or the Constitution says.

It’s all disingenuous bigotry dressed up as even-handed, rational, sober-minded statutory interpretation. But it’s anything but. This is straight-up racism—and under this Supreme Court, it’s increasingly the law of the land.

Needham and colleague Alix Breeden review the TPS and asylum cases in more detail. They first give the legal view, then the human impact. In addition to tossing out a lot of Haitians and Syrians, on which many companies such as nursing homes depend, the ruling allows the nasty guy to end TPS for several other countries. On Tuesday this week Needham wrote about a couple more rulings by the Supremes. These two cases are about whether the nasty guy has the ability to fire at will the heads of agencies that Congress set up to be independent of the president. One case is about the Federal Reserve, the other about all the other agencies. For all the other agencies the ruling, written by John Roberts, says the nasty guy is free to fire who he wants to without supplying a reason. For the Federal Reserve Roberts said it is special and the nasty guy must show cause before firing.

Why is the Federal Reserve special here? You won’t find a genuine answer in the opinions, both of which are written by Chief Justice John Roberts. It’s honestly nothing more complicated than that Roberts is perfectly thrilled to give the most worm-brained toddler of a president free rein to remake the administrative state in his image, but not to give the most worm-brained toddler free rein to destabilize monetary policy. Gotta know what’s really important here.

The nasty guy certainly shouldn’t be allowed to destabilize the economies of the billionaires that give so lavishly to the Court’s conservative members. Of course, the nasty guy shouldn’t want his billionaire donors to be destabilized, but his thinking probably isn’t rational.

How does Roberts square this? He doesn’t, really. And why should he? This isn’t about what the law actually is. It’s what Trump and Roberts want the law to be.

The ruling says that though the Constitution gives Congress the power create independent agencies, that really isn’t true. The Court is simply restoring balance. Which means:

Indeed, that’s exactly what Justice Sonia Sotomayor pointed out in her dissent: “Today, this Court undoes centuries of political practice and concludes that all three branches of Government have been acting in open defiance of the Constitution all this time.”

I’m sure Sotomayor, Kagan, and Jackson are getting mighty tired that a major portion of their job is to call out the BS of the six conservatives.

What Trump now gets is nothing less than a return to the spoils system, where the whole of federal jobs are filled with allies, cronies, and failsons and faildaughters who need jobs, regardless of any actual qualifications.

As for the Federal Reserve and the nasty guy’s target Lisa Cook, the ruling says he can’t simply fire her. But the ruling does not say in any detail what he does have to do to legally get rid of her. The big case before the court was whether the Fourteenth Amendment guarantees whether a person born in America is a citizen of America. Kos of Kos wrote the ruling by the Court looked at the plain reading of the Amendment and said, yes, that’s what it says. But the decision was not unanimous. That’s scary. Kos quoted Alito’s dissent, in which Alito described a case of birth tourism in which the baby grows up to plot against the US. Then Kos wrote Alito’s argument is about policy, wishing the Amendment was written differently than the way it was. The Constitution asks whether they were born here, not whether they’re patriotic. The First Amendment says Americans are free to hate their government. If someone plots against the country, that’s what intelligence and law enforcement are for. And Alito’s hypothetical hasn’t “posed the constitutional crisis he imagines during the 158 years since the Fourteenth Amendment was ratified.”

What makes Alito’s dissent so striking isn’t simply that he reaches a different conclusion. It’s that he barely attempts a textual defense at all. His objection is that the Constitution produces a result he finds unacceptable. That’s a perfectly legitimate argument for amending the Constitution. It’s a terrible argument for pretending the Constitution already says something else. Every day, this hyper-partisan, hyper-ideological court proves that it has lost the moral authority that should accompany its constitutional role. More than ever, it is in dire need of reform.

The number of views this blog got in June didn’t quite top that of May, though for much of the month it looked likely. The number of views in May, not quite doubling the previous monthly record, was 313,818. For June the total was 298011. For three weeks in June the daily number of views was mostly near or above 12,000 with some days going up to 20,000. Then in the last week the daily number of views dropped to 2,000 and went down from there to about 1,200. I have no idea why there was a dropoff.