Woe be unto any attorney who appears unprepared or advances specious arguments in the courtroom of U.S. District Court Judge Jack Coughenour, the first federal judge in the Northwest nominated by Ronald Reagan.
Coughenour, now a senior judge, delivered a scathing rebuke to President Trump’s bid to hollow out the 14th Amendment to the U.S. Constitution. The authoritarian-in-chief issued an executive order revoking birthright citizenship from offspring born in the United States to non-citizens, “illegals,” and those here legally.
In granting a restraining order against Trump’s unilateral action, the judge unloaded on the Trump Justice Department: “Frankly, I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It boggles the mind.”
Many people hold that opinion, including two other federal judges who ruled against Trump in separate suits. But the Supreme Court has agreed to hear a Justice Department appeal, underscoring a term consequential to and potentially destructive of American democracy.
Wording of the 14th Amendment to the U.S. Constitution, adopted after the Civil War, is straightforward: “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.”
In 1898, in the same term when it upheld segregation by race in public schools, an otherwise reactionary Supreme Court took the amendment at face value. It ruled that one Wong Kim Ark, born in San Francisco to non-citizen parents, was a U.S. citizen.
The U.S. vs Wong Kim Ark decision set a precedent that has stood for 127 years, until Trump signed his executive order on the day he returned to office. Again, in words of Judge Coughenour: “I have been on the bench for more than four decades and this is a blatant unconstitutional order. Where were the lawyers when this decision was being made?”
Funny he should ask. Trump has engaged in vengeance against lawyers and law firms, notably Seattle-based Perkins Coie, who’ve had the nerve, gall, and presumption to challenge his multiple violations of the Constitution. POTUS has blackballed them from government business, barred their barristers from federal buildings, and shaken them down for legal services as reparations.
Trump has claimed that the 14th Amendment was designed only to affirm citizenship of freed slaves. He has freely interpreted intent of the authors — never mind longstanding right-wing complaints about “activist judges” interpreting the law to their own ends.
The truth is more insidious. The toxic mix of xenophobia, nativism, and racism power the highest office of the land. What’s clearly at work is “white replacement theory,” the far-right accusation that Democrats and “the left” are plotting to overrun America with nonwhite immigrants — “obedient voters from third world countries,” in words of favored pundit Tucker Carlson.
Clearing the way for calculated Trump excess has been the Supreme Court’s majority. The Supremes have curtailed district judges, blessed gerrymandering, gutted the federal consumer protection agency, and largely eviscerated the 1965 Voting Rights Act. A pair of justices, Clarence Thomas and Samuel Alito, are as vengeful and ethnically challenged as Trump.
A range of cases, facing the high court this term, will potentially expand America’s move toward authoritarian boss-man givernment, on the model of Hungary or Turkey. The Supremes heard arguments Monday that Trump has authority to fire heads of independent federal agencies. They’ll hear, next month, the case that Trump can fire a member of the Federal Reserve Board.
The court majority seemed ready to overturn a 90–year-old precedent, that Congress can put limits on POTUS’ authority to remove such agency heads. Trump is out to fire Federal Trade Commission governor Rebecca Kelly Slaughter.
The law says a FTC governor can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” Trump wants to fire Slaughter, a Democrat, simply because she disagrees with his agenda. Both Slaughter and Lisa Cook, the targeted Federal Reserve Board member, are women. So are many of the people Trump has removed, starting with the commandant of the U.S. Coast Guard. Minorities, too, including the chairman of the Joint Chiefs of Staff.
The independent judiciary has likewise taken a battering, along with the doctrine of stare decisis, the legal principle that courts respect and follow precedent. Chief Justice John Roberts, during oral arguments in the FTC case, dismissed the court’s prior ruling as a “dried husk.”
If the court enhances Trump’s firing power, warned Justice Elana Kagan, it will put “massive uncontrolled, unchecked power in the hands of the president.” Added Justice Sonia Sotomayor: “You are asking us to destroy the structure of government.”
The time is past when conservatism in America stood for separation of powers with checks and limits on the presidency. In another major case, the Supreme Court will decide this term whether Trump (not Congress) has authority to arbitrarily impose and revoke tariffs.
The ultimate attack on American democracy, and the American dream, is to allow Trump to roll back an amendment to the Constitution. The wet dreams of the Heritage Foundation would become national policy and encourage a Balkanized world.
What comes next, sand blasting words of welcome off the base of the Statue of Liberty? Or perhaps inscribe new words: “Give me your oligarchs, your tyrants, your Afrikaners.”
This article also appears in Cascadia Advocate.
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