Joanne Freeman on Federalist No. 76 and the Whitaker Lawsuit

Trump and Whitaker

A group of Senate Democrats–Richard Blumenthal (D-Conn), Sheldon Whitehouse (D-R.I.), and Mazie K. Hirono (D-Hawaii)–has filed a lawsuit against the Trump administration.  The suit challenges the constitutionality of the appointment of Matthew Whitaker as acting attorney general.

The suit invokes the Constitution’s Appointments Clause and references Alexander Hamilton in Federalist 76:

The Constitution’s Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office. The Framers included this requirement to ensure that senior administration officials receive scrutiny by the American people’s representatives in Congress. The Appointments Clause is also meant to prevent the President, in the words of Alexander Hamilton in Federalist 76, from appointing officers with “no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

“Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. Americans prize a system of checks and balances, which President Trump’s dictatorial appointment betrays,” Blumenthal said. “President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation’s top law enforcement official. The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called “constitutional nobody” and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.”

On Twitter, Yale historian Joanne Freeman provides some context:

Peter Beinart on the “Real Authors” of *The New York Times* Op-Ed

Congress

Writing at The Atlantic, Beinart argues that Republicans in Congress are the “real authors of the anonymous New York Times op-ed.  Here is a taste:

In theory, in America’s constitutional system, the different branches of the federal government check one another. When a presidents acts in corrupt, authoritarian, or reckless ways, the legislative branch holds hearings, blocks his agenda, refuses to confirm his nominees, even impeaches him. That’s how America’s government is supposed to work. But it no longer does. Instead, for the last year and a half, congressional Republicans have acted, for the most part, as Trump’s agents. Not only have they refused to seriously investigate or limit him, they have assaulted those within the federal bureaucracy—the justice department and the FBI in particular—who have.

So in the absence of this public, constitutional system of checks and balances, a secret, unauthorized system has emerged to replace it. Because Congress won’t check the president, the president’s own appointees are doing so instead. 

Read the rest here.

Historians and History Teachers in the Age of Trump

hisotry-class

Last week I got a nice note from a former student. Let’s call him Patrick.

Patrick is a recent college graduate and a relatively new history teacher. He wrote to tell me that his middle-school principal recently praised him for his good work in the classroom.  In the course of their conversation the principal said, “history is important, particularly now.”

Patrick’s principal is right. Good history is always important, but it is especially needed in times of great social and political change.  We are living in a day and age when historians and history teachers must serve as a “check” on presidential power.

Donald Trump gave history teachers a gift when he released his executive order banning immigration from 7 predominantly Muslim nations. When the 9th Circuit Court refused to overturn a federal judge’s decision to stop this ban, classroom lessons on the separation of powers came took on new significance. The Executive Branch went too far and the Judicial Branch, at least for the moment, put a stop to it.  Chalk it up as a victory for the Constitution.  The facts of the textbook met the realities of current events.  This is every history teacher’s dream.

The separation of powers is not the only way to keep the President of the United States in check.  A free press holds the government accountable to the people. Freedom of speech and the right to assemble, as we have seen in American cities every weekend since Trump took office, is a means of getting the President’s attention and exercising dissent.

It is time that those of us who are called to teach and write about the American past must use our First Amendment rights to be part of the dissent.

Sometimes our public work as historians is as simple as correcting the historical record when it is being abused by those in power.

For example, earlier this month Kellyanne Conway, a senior official in the Trump White House, introduced us to something called the “Bowling Green Massacre.”

I imagine that there were people who saw and heard Conway’s conversation with television host Chris Matthews and believed her claim that two Iraqi refugees in 2011 led a “massacre” of Americans in the town of Bowling Green, Kentucky.  By claiming that such an event happened (it did not) and giving her fake story a historically-sounding name like the “Bowling Green Massacre,” Conway was trying to instill fear in ordinary Americans.  It was a blatant attempt to fabricate history in order to justify her boss’s immigration ban.  History teaches us that tyrants often manipulate the past to buttress their power.

Historians quickly debunked Conway’s fake history, but the damage had already been done.  The day after the Conway’s interview with Matthews I was speaking to a Trump voter who referenced the “Bowling Green Massacre” as a Muslim terrorist attack that could have been avoided if Trump’s ban had been in place in 2011.  A poll by Public Polling Policy found that over half of Trump supporters still believe that the President’s executive order is justified by the “Bowling Green Massacre.”

Historians might also show that Americans have been banning immigrants based on country of origin or religious faith for a long time.

The Chinese Exclusion Act of 1882 and the Johnson-Reed Act of 1924 excluded people from coming to the United States on the basis of their race, ethnicity, or country of origin. The Johnson-Reed Act, which banned most immigration from Africa, Asia, and the Middle East, remained in place until 1965.

Historians must remind us, in this age of Donald Trump, that we as a nation have not always lived up to our highest ideals.  Their work can remind us that we have failed in the past and encourage us, perhaps this time around, to follow our better angels.

But most importantly, historians offer ways of thinking about the world that we desperately need right now.  History teachers challenge students to make evidence-based arguments. They spend time showing students how to write footnotes and cite sources correctly because they do not want them to speak or write in public without research to support their conclusions.  They counter “fake news” with facts.

In this regard they teach the nation’s young people how not to be like Donald Trump.

History teachers challenge students to enter imaginatively into the thoughts and motivations of the people they encounter in the past.  They teach students to listen before judging and to empathize before criticizing.  They want students to consider the public statements of our leaders in context, and to call them out when they play fast and loose with the past for the purpose of political gain.

There is nothing in the U.S. Constitution about the role that historians and history teachers play in the checking of presidential power.  But we need them now–perhaps more than ever.

No, Stephen Miller. That’s Not How it Works.

This post is pretty basic, but it needs to be said.  In this day and age there are a lot of “basic” things that need to be said about how our government works, how republics are maintained, and how a democratic society functions.

In case you missed, here is Trump adviser Stephen Miller suggesting on CBS’s Face the Nation that Donald Trump’s power to protect the country are “very substantial and will not be questioned.”

No Mr. Miller, that’s not how the United States government works.  We have a system of checks and balances in this country for the very purpose of “questioning” every decision that the President makes.

Here are some passages from James Madison’s Federalist #47:

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny.

The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. “When the legislative and executive powers are united in the same person or body” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Again “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.” 

Here is Madison in Federalist #48:

In a government, where numerous and extensive prerogatives are placed in the hands of a hereditary monarch, the executive department is very justly regarded as the source of danger, and watched with all the jealousy which a zeal for liberty ought to inspire.  (See my post “Political Jealousy is a Laudable Passion“).

Here is Madison in Federalist #51:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.

Here is George Washington in his 1796 Farewell Address:

The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes.

Here is Thomas Jefferson in his Notes on the State of Virginia:

The time to guard against corruption and tyranny, is before they shall have gotten hold on us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.

For a nuanced explanation of all this I recommend Aaron Blake’s piece at The Washington Post.