What does a TRUMP presidency look like?

[The Minsky Moment]

Not going to go point by point on Cannon's ruling - it would take too long and google can provide ample analysis on that score already.  Suffice it to say that I've often commented critically on various Supreme Court ruling etc.  These are not those kind of errors.  These are the kind of basic errors that 1st year law students are supposed be trained out of in the first few months, in the good old days through a Socratic dressing down.

There has been commentary to the effect that this is just a procedural "speed bump" that will result in only a shot delay.  Perhaps that is true, I hope it is.  But that assumption is based on to a great extent on the limited past experience with special masters in this context, which so far has exclusively involved attorney-client privilege review.  A-C privilege is something well understood by all litigators and judges and relatively well-defined in the law.  It is no great task to review a few thousand docs for privilege; every law firm litigation associates cuts their teeth spending hundreds of hours of time doing such review.

Executive privilege is another story.  There are  literally tens of thousands of cases explaining the precise scope and boundaries of attorney-client privilege.  There is nothing like that for executive privilege, and the case law that exists speaks in terms of balancing of different interests. It is also contextual - the Nixon-era cases speak of communications in the performance of Presidential responsibilities made in the process of shaping policies and making decisions.  How can one tell simply from reading a bare document whether it involves are implicates a policy or decision-related communication?  In many cases this could involve looking at other documents or getting additional testimony on witnesses to determine context - but to do that for hundreds of documents would be a much more lengthy and convoluted process than a basic A-C review.

Lets say that problem is overcome and executive privilege documents can be identified and segregated.  Then what?  Someone has determine if the Executive Branch (DOJ)'s need override the privilege.  Now this should be a very simple inquiry because under both US v Nixon and Nixon vs GSA, the answer is clear - a DOJ criminal investigation overrides EP, period. But then what purpose does the EP review serve?  Clearly Judge Cannon has something else in mind (or hasn't thought through the next steps) - but whatever it is, it means more litigation and more wasted time.

OK, but even if a an Exec Branch criminal investigation is derailed by an assertion of privilege belonging to the Exec Branch, at least DNI can conduct their national security review, pursuant to Judge Cannon's order permitting that review to go forward.  But how exactly is DNI supposed to do that job properly if they can't talk to DOJ?  If they find a concerning doc and want to find out who had access, what are they supposed to do?  They don't have subpoena power or that kind of investigative staff.  Normally they would liaise with DOJ to gather additional evidence and information but now they cant do that.  So the security review is compromised, at least in part.

The latter part hits at the heart of constitutional wrong of Judge Cannon's decision. Executive privilege is not in the Constitution, it's not in the statute books.  Its legal status can only stem from the doctrine of separation of powers. And thus Judge Cannon's appointment of  master on EP grounds necessarily is based on supposed need to protect separation of powers.  But what does her opinion do?  In the face of clear facts of the most overwhelming Executive Branch needs - to protect national security and investigate violations of criminal law - she is issuing an order micromanaging how the executive branch carries out its core functions.  It is hard to conceive of a more blatant and intrusive violation of the doctrine of separation of powers.

To protect the Constitution, she had to destroy it.

[The Minsky Moment]

The other dimension of the Cannon ruling is the broader question of the consequences of appointing cadres of inexperienced 30-something federal judges short on professional achievement but long on rigid loyalty to ideological commitments.

Appointment of judges with ideological views and biases is nothing new of course.  But in the old days, the appointee either had to have an impressive professional record as well (unless they were a crony of a particularly powerful Senator - but those guys tended not to get promoted up).  And a judge who wanted to advance to the Court of Appeals knew he or she had to demonstrate strong competence on the job to move up.

But the Trump Tykes can't count on judicial ability to rise, because weren't chosen for having it.  Their hope is that Trump - or at least someone suitably Trumpy enough - gets back into office, in which case promotion decisions will be made on fealty, not on demonstrated strength in the job.

That is deeply, deeply corrupting of the institution.

[OttoVonBismarck]

I'm fine with the corrupting of the institution aspect, because I have never valued the almost divine reverence the political branches hold for the judiciary. I have always wanted to see the judiciary's power gutted and defenestrated, and I think the more it becomes clearly full of ignorant hacks, the more likely that is to eventually occur. Judges have far too much power over matters that should be political, executive or legislative, and much of it is power they have just gobbled up for themselves and the other branches have passively allowed.

Despite the Federal government being a more limited one in the 19th century, a lot of the behavior of the judiciary would simply have not been tolerated or complied with by 19th century elected leaders.

[crazy canuck]

I have been thinking about what came first. The cowardice of the political class or the power given to the judiciary (in your version taken by the judiciary).

In the Canadian context I think a strong argument could be made that the courts were very reluctant at first to take over those sensitive political decisions, but were forced to do it because the politicians kept referring what were essentially political questions to the judiciary. I think the start of that was the constitutional question reference regarding what was required to repatriate the constitution.

The next mile stone was the political class passing the question of same-sex marriage to the courts completely. These days it is almost routine for politicians not to make difficult political choices but rather wait to hear what the courts have to say about it. In my view, there has been a complete abandonment of decision making by politicians in areas where they can foist the hard calls on to the courts.

I don't know near enough of a the American experience to know if there is a close analogy to this experience. If the American experience is better described as the judiciary purposefully taking control, what would you say are the seminal moments in that process?

[OttoVonBismarck]

Yeah and I'm not an expert on the history either, I don't know that in a practical sense there is a world of difference between "the judiciary seized X power" or "the elected branches ceded X power through refusal or inability to make decisions", the end result is a lot of power has accrued to our least accountable branch. The American judiciary has always been political, and to some degree the judiciary as an institution, anywhere it exists, cannot be truly apolitical, and that's fine. I think it is actually dangerous to assume the judiciary is totally devoid of politics, from what I can tell reading 19th century history it was widely understood there was no such thing as an apolitical judge in most circumstances.

There is a reason John Adams rushed a bunch of judicial appointments through in his final weeks as President, it was a political decision, and it was understood Federalist faction judges would advance their political interests long after they left office. A big counterbalance against the unaccountable nature of the judiciary, is the elected branches had major checks on them--Congress defined almost the entire scope of how the courts worked and what they could and could not do. A lot of focus sometimes drifts into certain court Supreme Court constitutional functions that are clearly spelled out in our constitution, but most of what our courts do is actually defined by a series of judiciary acts going back to the period 1890s-1925s.

The executive branch also historically had a lot of power over things that were not seen as appropriate for judicial review--that has changed since the 1930s and 40s, and especially since the 1960s and the judiciary has gotten more and more willing to involve itself in core executive branch political functions.

I am far from an expert in the judiciaries of other countries, but I have done at least some reading about the British judiciary, as well as those in Italy and France, for various reasons. It seems like the balance between elected officials and the judiciary, and the power of the judiciary to impose itself on ordinary functions of daily government life are in a much better place in those countries than in the United States.

I think one issue is much of our judiciary function was scoped out by the late Gilded Age and early Progressive Era before the Great Depression, and like a lot of things is now treated as "sacrosanct." It is weird that a lot of simple legislative decisions made in the early 20th century, things that are not constitutional amendments, that were simply passed by a simple majority vote, have become indelible and treated like something that not only cannot be changed, but that you're crazy to even talk about changing.

One of the more egregious problems with the modern judiciary is the practice of district court judges (of which there are like 600) issuing national injunctions covering parties not at all in the suit before their court. Under Trump, his administration was the "victim" of several such injunctions, but it is a practice that appears to have largely begun in the 1960s. There are a scattered number of examples that predate that, but they were rare and it is a little questionable if they had the same form as the national injunctions we see today. It seems like the Republiccans have been the primary party arguing against such injunctions, because it has usually been Republican administrations who have fallen victim to the most high profile ones. But I tend to find their arguments at least decently compelling. I do not think it was ever intended for 1 District Judge who is assigned a specific judicial district in which to work, a system that we specifically drew up along geographic lines, to set national policy for the entire United States.

Some national injunctions are literally a case of a single unelected, unaccountable judge, operating in a single district, having more power than all of Congress and the Presidency combined. And again, this is now treated as an immutable and necessary feature of our government, even though it largely never happened prior to about 50 years ago, somehow we managed to function for 175 years without them, but now they are immutable.

[Sheilbh]

I agree with a lot of OvB says but I suppose the other side of the story is the activists seeking change.

In the US - from a distance - it seems like there has always been a dual track judicial and political approach since at least the civil rights movement of looking for model cases to bring to try and get up the Federal system, as well as pushing for legislative change or candidates who share your views. It seems very strong on the right at the minute where it feels like the conservative legal movement really does work to strategically identify the claims that they might be able to use to get to the Supreme Court.

I'm unsure if that's always been the way or if it's a shift in the 20th century.

The next mile stone was the political class passing the question of same-sex marriage to the courts completely. These days it is almost routine for politicians not to make difficult political choices but rather wait to hear what the courts have to say about it. In my view, there has been a complete abandonment of decision making by politicians in areas where they can foist the hard calls on to the courts.

Although here issues that are seen as "moral" such as abortion, death penalty, gay marriage, I believe assisted dying too are not subject to whipping. They are almost always a free vote because they are seen as conscience issues for MPs and I think there is a desire to not allow them to become party political.

Assisted dying goes to the courts fairly regularly - I'd say every ten years or so - and they are pretty consistent where they basically apply the law as it is now, in line with previous judgements and say changing that position is not their job and so momentous that it requires parliament to pass legislation. They're not willing to alow it on the basis of human rights in statute or common law. It comes up in more prosaic areas too like land law where the courts will basically say "there's arguments on both sides here" but, in a democratic society, the way we address those is through the legislature and we're not willing to overturn 100 years of precedent but of course parliament can.

[Zanza]

My impression is that other constitutions than the American one can be amended much easier and are in fact amended more frequently. That moves the power balance to the legislative. In the US the constitutional amendment process seems dysfunctional due to the extreme partisanship.

[crazy canuck]

My impression is that other constitutions than the American one can be amended much easier and are in fact amended more frequently. That moves the power balance to the legislative. In the US the constitutional amendment process seems dysfunctional due to the extreme partisanship.

One Quibble - Amending the Canadian Constitution is effectively impossible.

Also, more to the point - it is not really the constitution that is the problem in Canada that is at fault.  Politicians in Canada could have made different decisions over time which would have kept political choices within Parliament.  In fact, in Canada, politicians can, at anytime, take back all control because our constitution expressly allows them to do that (the Notwithstanding Clause).  But they keep passing the political buck to the courts.

[Barrister]

My impression is that other constitutions than the American one can be amended much easier and are in fact amended more frequently. That moves the power balance to the legislative. In the US the constitutional amendment process seems dysfunctional due to the extreme partisanship.

One Quibble - Amending the Canadian Constitution is effectively impossible.

Also, more to the point - it is not really the constitution that is the problem in Canada that is at fault.  Politicians in Canada could have made different decisions over time which would have kept political choices within Parliament.  In fact, in Canada, politicians can, at anytime, take back all control because our constitution expressly allows them to do that (the Notwithstanding Clause).  But they keep passing the political buck to the courts.

Hell - the federal Parliament has the power to disallow any provincial legislation! 

It's just they haven't done so for the last 80 years.

[crazy canuck]

My impression is that other constitutions than the American one can be amended much easier and are in fact amended more frequently. That moves the power balance to the legislative. In the US the constitutional amendment process seems dysfunctional due to the extreme partisanship.

One Quibble - Amending the Canadian Constitution is effectively impossible.

Also, more to the point - it is not really the constitution that is the problem in Canada that is at fault.  Politicians in Canada could have made different decisions over time which would have kept political choices within Parliament.  In fact, in Canada, politicians can, at anytime, take back all control because our constitution expressly allows them to do that (the Notwithstanding Clause).  But they keep passing the political buck to the courts.

Hell - the federal Parliament has the power to disallow any provincial legislation! 

It's just they haven't done so for the last 80 years.

I was not aware of that    - where is that power found?

[Sheilbh]

My impression is that other constitutions than the American one can be amended much easier and are in fact amended more frequently. That moves the power balance to the legislative. In the US the constitutional amendment process seems dysfunctional due to the extreme partisanship.

I'm not sure how much is to do with the constitution though and how much is the difficulty in normal legislating - partisanship's a part but so is the power given to a minority. Because it's been incredibly difficult to make legislative change, especially in the last 30 years, I suspect there's been more effort and money and activism in making issues "constitutional" so you have the court route.

And that's possibly been more of an option because the difficulty in legislating means that presidencies are really pushing at the limit of their executive powers too - which again opens up a route to the court.

[Barrister]

My impression is that other constitutions than the American one can be amended much easier and are in fact amended more frequently. That moves the power balance to the legislative. In the US the constitutional amendment process seems dysfunctional due to the extreme partisanship.

One Quibble - Amending the Canadian Constitution is effectively impossible.

Also, more to the point - it is not really the constitution that is the problem in Canada that is at fault.  Politicians in Canada could have made different decisions over time which would have kept political choices within Parliament.  In fact, in Canada, politicians can, at anytime, take back all control because our constitution expressly allows them to do that (the Notwithstanding Clause).  But they keep passing the political buck to the courts.

Hell - the federal Parliament has the power to disallow any provincial legislation! 

It's just they haven't done so for the last 80 years.

I was not aware of that    - where is that power found?

Section 90 of the Constitution Act.

But just to caution you - while it was apparently commonly done in the 19th century, it became increasingly politically dangerous and the last time it was used was apparently 1943.

But the power is still there.  So remember that the next time the Feds bitch about, I dunno, Quebec's French-language laws, or Danielle Smith's crackpot Alberta Sovereignty Act.  Actually that would be hilarious to watch if she wins and passes a law claiming that Alberta can disallow federal laws within Alberta (they can't), only for the Feds to disallow the ASA (which they can).

[DGuller]

I think the power of the judiciary in the US is a kludge that developed to work around the gridlocked legislative process.  To me the really misplaced reverence is for the concept of legislative gridlock, where Americans think it's a feature and not a bug.  It's a "feature" that enables the dictatorial powers of the other two branches. 

If one party wins the control of legislature, it should actually be allowed to make some changes, that's what it was elected for.  The job of the other two branches should be to check their power (so that the party in power doesn't legislate itself into permanent power), not to take on their responsibilities.

[grumbler]

I'm not sure how much is to do with the constitution though and how much is the difficulty in normal legislating - partisanship's a part but so is the power given to a minority. Because it's been incredibly difficult to make legislative change, especially in the last 30 years, I suspect there's been more effort and money and activism in making issues "constitutional" so you have the court route.

And that's possibly been more of an option because the difficulty in legislating means that presidencies are really pushing at the limit of their executive powers too - which again opens up a route to the court.

I think that this is the key; legislation in Congress seldom gets bipartisan support.  The minority is more interested in sabotaging the majority so as to make them look bad than they are with promoting the welfare of the country.  There are very few United States Congressmen.  Almost all are either Republican Congressmen or Democratic Congressmen, and their loyalty is to party over nation.  Ditto for the Senate.  The courts and administration are the only actors who can act.

[crazy canuck]

My impression is that other constitutions than the American one can be amended much easier and are in fact amended more frequently. That moves the power balance to the legislative. In the US the constitutional amendment process seems dysfunctional due to the extreme partisanship.

One Quibble - Amending the Canadian Constitution is effectively impossible.

Also, more to the point - it is not really the constitution that is the problem in Canada that is at fault.  Politicians in Canada could have made different decisions over time which would have kept political choices within Parliament.  In fact, in Canada, politicians can, at anytime, take back all control because our constitution expressly allows them to do that (the Notwithstanding Clause).  But they keep passing the political buck to the courts.

Hell - the federal Parliament has the power to disallow any provincial legislation! 

It's just they haven't done so for the last 80 years.

I was not aware of that    - where is that power found?

Section 90 of the Constitution Act.

But just to caution you - while it was apparently commonly done in the 19th century, it became increasingly politically dangerous and the last time it was used was apparently 1943.

But the power is still there.  So remember that the next time the Feds bitch about, I dunno, Quebec's French-language laws, or Danielle Smith's crackpot Alberta Sovereignty Act.  Actually that would be hilarious to watch if she wins and passes a law claiming that Alberta can disallow federal laws within Alberta (they can't), only for the Feds to disallow the ASA (which they can).

Many thanks