How well are America’s governing institutions holding up? | ticker VIEWS

This week, two branches of the government of the United States, as established by the Constitution of the United States, face clear and present dangers – actions of contempt – that threaten the rule of law in the United States

Contempt challenges for congress and the supreme court

The House of Representatives will begin the process of punishing, by seeking criminal prosecution, a man named Stephen Bannon, a former aide to President Donald Trump who continued to serve as an unofficial advisor in the last years of Trump’s term.

Bannon was with Trump and in conversations with Trump in the days leading up to the deadly insurrection on January 6, whose purpose was to stop the certification by Congress of the 2020 presidential election and the peaceful transfer of power to Joe Biden, who won the election.

The House of Representatives has established a Select Committee to investigate all aspects of the insurrection:  what happened, who was responsible, what plans were in place to protect the Capitol, what was the chain of command and steps taken to send forces to put down the violence and clear the Capitol.

The Select Committee also wants to know what the President did that day, who he talked with and what was said, what decisions were made, what his intentions were. Both the Vice President and the Speaker of the House – the next officials in the line of succession to the President – were targets of the mob.

Bannon’s testimony is crucial to understanding the events of that day and what Trump did that day

Bannon is refusing to testify, citing orders from Trump that he not cooperate, with Trump citing “executive privilege”: the ability of a president to shield officials and documents from investigation.

But the United States has but one president at a time. The only president who can assert executive privilege is the one in the Oval Office. And President Biden has waived any assertion of executive privilege for the purposes of the Select Committee’s work.

Bannon is happy to talk to the media, and to authors of books about Trump, and is free to give them his account of what he knows of what Trump was doing to overturn the election. But he will not comply with a subpoena from the House Select Committee to give evidence.

The Select Committee will find Bannon in contempt for refusing to testify. The House will vote a resolution seeking action by the Justice Department to enforce the Committee’s subpoena to Bannon through a criminal prosecution for his contempt. 

Why is this important?

Under the Constitution, the Congress is a co-equal branch of government, equal in stature to the Executive. Congress’ constitutional responsibility is to ensure that the Executive Branch conducts its business in conformity with the laws Congress has passed.

If Congress cannot oversee activities by Executive Branch officials and those who engage with it, Congress cannot fulfil its duties, meaning that there is no check and balance on what the president does.

With only a handful of exceptions, Republicans will vote against this contempt proceeding. Which means they are voting to permanently weaken the Congress with respect to the President.

Which means that, should Republicans take control of the House, there will be a precedent for their oversight work to be stonewalled. Which means that presidential abuses of power can easily be beyond the reach of the rule of law under the Constitution.

The Supreme Court will receive an urgent appeal from the Department of Justice, asking to overturn a lower court decision that removed an injunction on the new abortion law of Texas. That law bans abortions after 6 weeks and enables any citizen to sue – and get a $10,000 bounty if successful – anyone who provides an abortion or assists in an abortion (including anyone who drives a woman to a health clinic for an abortion that is illegal under the Texas law).

The Texas statute on its face is plainly, inescapably unconstitutional under landmark Supreme Court decisions in 1973 and 1992 that established abortion as a woman’s right to so choose under the Constitution. As the New York Times explains,

Supreme Court precedents prohibit states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks into a pregnancy. That makes the Texas law unconstitutional under the controlling precedents.

The unconstitutionality of the Texas law could not be plainer. 

In addition, it is a tenet of jurisprudence that judges be guided by the doctrine of stare decisis. A legal policy unit at Cornell Law School describes the doctrine:

Stare decisis is Latin for “to stand by things decided.”  In short, it is the doctrine of precedent.

Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.

Trump appointed three justices to the Court during his term, giving the Court a solid conservative majority

All were selected with the belief that they could – and likely would – vote to overturn Roe v Wade, the bedrock abortion rights decision. In the hyper-intensive atmosphere involving the confirmations of now-Justices Neil Gorsuch, Brett Kavanaugh and Amy Comey Barrett, they all pledged respect for stare decisis.

We are about to fund out, as the Supreme Court considers the Texas case, and also in December a Mississippi case outlawing abortion after 15 weeks, if this Supreme Court will overturn abortion rights. 

And we will therefore find out whether this Supreme Court also has contempt for the rule of law.

These challenges test how well America’s governing institutions are holding up under the immense strains of the Trump presidency. And how strong governance truly is in the US right now.