Why the Court Is Independent of the Executive Branch

There are reasons the Founding Fathers of our fledgling Republic distributed power amongst three branches of government. They were well aware of the consequences of having power solidified in a single entity, the monarch. Hence, they created a checks-and-balances system of government to prevent the consolidation of power.

Currently there is an attempt to restrain the judicial branch of government in the United States. This is not an isolated incident. A brief review of history reveals numerous examples of how totalitarian leaders took measures against judges or judicial bodies for verdicts or decisions that went against their interest. Here are a number of notable examples:

1. Joseph Stalin (Soviet Union): During Stalin's Great Purge (1936-1938), many judges, prosecutors, and legal officials were executed or sent to labor camps. While these purges were often justified under accusations of anti-Soviet activities or conspiracy, many were targeted simply because they were perceived as threats or had issued decisions that were not in line with Stalin's desires.

2. Adolf Hitler (Nazi Germany): In 1934, during the Night of the Long Knives, Hitler's regime executed many political adversaries, including members of the judicial system who were perceived as threats or who had opposed the Nazi party. While not directly a purge of judges for specific verdicts, it was a clear message to the judiciary to align with Nazi policies.  

3. Mao Zedong (People's Republic of China): During Mao's Cultural Revolution, the Red Guards targeted many legal officials, including judges, for being part of the "old society" or for issuing verdicts that did not align with the revolutionary ideology. Many were publicly humiliated, imprisoned, or executed.

4. Nicolae Ceaușescu (Romania): Ceaușescu's regime was known for its brutal repression of dissent. Judges and legal officials who issued decisions contrary to the wishes of the Communist Party were often removed from their positions, imprisoned, or executed under trumped-up charges of corruption or anti-state activities.

5. Pol Pot (Cambodia): The Khmer Rouge, under Pol Pot, dismantled the existing judicial system entirely. Judges, lawyers, and legal officials were seen as enemies of the revolution and were often executed or sent to brutal labor camps.

6. Saddam Hussein (Iraq): Under Saddam Hussein's rule, judges who opposed or issued unfavorable verdicts against the regime were often executed or disappeared. The judicial system was heavily manipulated to serve the interests of Hussein and the Ba'ath Party.

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In recent years I've been concerned about the manner in which our U.S. presidents create laws via Executive Order. It's true that presidential powers have been used from the. beginning. George Washington used an executive order to keep our country from getting tangled in a war between Britain and France. Thomas Jefferson also issued an executive order. Abraham Lincoln used his executive authority when he issued his Emancipation Proclamation.

The 20th century dawned with Teddy Roosevelt flexing his executive muscle, initiative 1000 executive orders during his presidency. FDR issued over 3700 executive orders to address the Great Depression and World War II. His attempt to stack the Supreme Court was especially noteworthy. Several of FDR's initiatives were determined to be unconstitutional and were struck down by the Court. In response he attempted to stack the court in his favor by adding six new Justices to the court for a total of 15. Critics saw it as an attempt to undermine the judiciary's independence and to consolidate executive power, which is exactly what it was. Ultimately, the Senate had its say, defeating the bill by a vote of 70 to 20.

Today President Biden is attempting to bring the Supreme Court under the wing of the Executive branch by doing away with lifetime appointments. He is currently pressing Congress to pass legislation that would establish term limits and a system enabling a sitting president to appoint justices every two years. This would give  the executive branch control of the jdcial branch of government, thereby weakening the original checks and balances system, changing our Constitution and threatening democracy. 

The unchecked consolidation of power is not in the best interest of the people or our future. When presidents can bypass Congress with Executive Orders and the Court becomes a branch of the Executive, we're getting closer to the political system our Founders railed against. 

He Who Controls the Narrative Controls the People

Who controls the past, controls the future: who controls the present controls the past. — Geo. Orwell, 1984

Photo by Robinson Recalde on Unsplash

When future historians write about the 20th Century, it would not surprise me to find it had been nicknamed The Century of Spin. Today more than ever we see that the battle for the minds of the people revolves around the manner in which events get interpreted, not necessarily the events themselves.

Social observers have long noted this trafficking in interpretations. Who decides what is good and what is bad? Who decides who the good guys and bad guys are in this battle for control of the narrative?

We live in a mediated world. Before entering World War One, very few Americans knew much about Germany, its history and its aims. But as the drums of war began to sound, there were plenty of messages being piped into our brains through the news media, striving to form a national will to take up arms against Kaiser Bill and those German brutes.

But who were these brutes, really? Stories of German aggression were circulated as if Otto Bismarck and later Kaiser Wilhelm were out to take over the world. In point of fact, history didn’t bear this out at all. It was the British Empire that had had a 300 year hold on the world, famously declaring with pride, “The sun never sets on the British Empire.”

If one were to look at the century previous to that first Great War to see what countries were the most aggressive, one might be surprised at what the facts revealed. Great Britain had been in 10 wars, Russia 7, France 5. Among the least warlike of the European powers had been Austria 3 and Germany only 3. What’s more, under Bismarck and the Kaiser Germany never engaged in a single armed conflict.

When a German U-Boat blew up the Lusitania, it was not a surprise attack on innocent victims. According to Encyclopedia Brittanica the ship was carrying, in addition to passengers, a cargo of 173 tons of rifle ammunition and shells. For this reason “the Germans, who had circulated warnings that the ship would be sunk, felt themselves fully justified in attacking a vessel that was furthering the war aims of their enemy.”

The spin was in, and America had the justification it was looking for to enter the war. Thus was born the Committee on Public Information (CPI), whose aim was to influence U.S. public opinion to support the war effort. Wilson’s Executive Order 2594 set in motion an ever broadening series of events.

This anti-German sentiment had serious consequences. Hatred was aroused toward German-American citizens and “being anti-German became a way of showing patriotism for the American war effort.”(1) Even though there were more immigrants from Germany than from any other country, many libraries pulled books off the shelves that might be considered pro-German. Laws were passed specifically hostile to German-Americans.

The climate became so hateful that by 1918, South Dakota prohibited the use of German over the telephone, and in public assemblies of three or more persons. “By the early 1920s, 34 states had passed English-only requirements in their schools. These laws were argued before the Supreme Court in the case of Meyer v. Nebraska.” (2)

Years ago I remember reading about German Americans having their dachshunds murdered by hostile neighbors. These actions were generated by the propaganda machinery of our government, hand-in-glove with the powerful newspaper media network. This anti-German sentiment came directly from the Wilson White House. (He’d formerly been president of Princeton, an idealist and educated fool, which he’d soon have ample opportunity to prove before the end of his second term.)

In the late 1920s Edward Bernays wrote a book about the essential role that propaganda plays in helping shape the attitudes of the body politic. “The conscious and intelligent manipulation of the organized habits of the masses is an important element in democratic society. Those who manipulate this unseen mechanism of society constitute an invisible government which is the true ruling power of our country.” — Propaganda, c. 1928

Propaganda was considered a good thing, when the good guys were using it. When Bernays’ book was written, the liberal elite liked the idea of controlling the masses without having to resort to guns. Public education was utilized for the same purpose. (At that time social engineering was having a field day with other techniques for re-shaping the masses, including forced sterilizations. Lobbyists for the eugenics movement succeeded in legalizing forced sterilizations in more than 30 states.(3))

Bernays went on to say, “We are governed, our minds molded, our tastes formed, our ideas suggested, largely by men we have never heard of… It is they who pull the wires which control the public mind, who harness old social forces and contrive new ways to bind and guide the world.”

Walter Lippman, in his book Public Opinion, which deals with these same matters, wrote, “We are told about the world before we see it. We imagine most things before we experience them. And those preconceptions, unless education has made us acutely aware, govern deeply the whole process of perception.”

It was the propaganda machinery of Goebbels and the Nazis that gave propaganda a bad name. As Hitler’s Minister of Propaganda who famously asserted, “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.”

After the war, a kinder gentler term would be adopted: Public Relations.

Every politician has a PR team actively shaping their messages and feeding their sound bytes to the media directly and through thinly veiled “independently” written letters to the editor.

Edward Bernays used his book as a stepping stone to advance his own career as a publicist. He ultimately achieved the stature he desired, becoming a mouthpiece for Big Tobacco for a spell, as well as for General Electric in what amounted to helping it achieve a “stranglehold on America’s electric power” in “the largest propaganda drive in peacetime history.” (M.C.Miller)

His crowning achievement was the work he did in Latin America during the 1950s on behalf of the United Fruit Company (UFC) whereby he paved the way for the CIA overthrow of the democratically elected government of Jacobo Arbenz. To our shame as a nation, we did not dig into the motivations of UFC or the underlying truths behind what was really going on there in Guatemala, or Costa Rica. The resulting damage to U.S. credibility in the region lingered for decades.

In 1962 French thinker/theologian and social critic Jacques Ellul wrote a book titled, Propaganda: The Formation of Men’s Attitudes. In it he writes, “Propaganda does not aim to elevate man, but to make him serve.”

Ellul’s books addressed the issues of modern life. Our relationship to the State was one of his recurring themes, which is why it became important for him to write a book about propaganda. It is a central feature of contemporary life.

In 1973, Italian novelist/philosopher Umberto Eco wrote, “Not long ago, if you wanted to seize political power in a country you had merely to control the army and the police. Today it is only in the most backward countries that fascist generals, in carrying out a coup d’état, still use tanks. If a country has reached a high degree of industrialization the whole scene changes. The day after the fall of Krushchev, the editors of Pravda, Izvestiia, the heads of the radio and television were replaced; the army wasn’t called out. Today a country belongs to the person who controls communications.”

On this topic much more can be said. The aim here is not to say all, but to open the door a crack that we might see how our current national malaise fits into the broader history that preceded it. All around us we have warring cultural forces at odds with one another. If one day there comes a time to choose sides, it’s better to have worked at becoming informed than to later make excuses for having buried one's heads in the sand.

Related Links

(1) See: Anti-German Sentiment
(2) See: The Anti-German Sentiment of World War I
Jacques Ellul’s Propaganda: The Formation of Men’s Attitudes
(3) Eugenics related:
Bad Ideas: The Eugenics Movement In America
Eugenics, Revisited

Originally published on Medium, 8 April 2020.

Miscellaneous Observations on Green Cards, Homelessness and the Eviction Moratorium Extension

According to the WSJ "about 100,000 green cards are at risk of going to waste this year as the application backlog grows." Having a Green Card is what enables you to permanently live and work in the U.S. The Washington Post published an opinion piece on this last week. The problem is primarily caused by slow processing of paperwork. 

What it actually shows is that government officials excel at making pronouncements but all too frequently haven't done the heavy lifting of HOW TO IMPLEMENT their noble plans. As nearly everyone knows, the devil is in the details. 

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Businesses can be guilty of this as well. The consequences can be costly and even damage a company's future, though more often it simply produces frustration amongst internal staff. The Fed has no such concern. When too many people notice a failure to deliver, they just point to another crisis over there and this one over here to divert our attention. There are more than enough crises to go around.

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The ongoing Eviction Moratorium is a strange and convoluted story. Reason magazine published a story this week titled After Claiming It Didn't Have the Power To Impose A New Eviction Moratorium, the Biden Administration Imposes a New Eviction Moratorium.

The lead editorial of the WSJ's weekend edition succinctly addresses this matter. The first eviction moratorium was illegal, but went forward anyways because the president stated he would not do it again. The Supreme Court explicitly said "any further action would need legislative steps." In other words, you can't just do this via executive order.

Needless to say, Biden did it again but  says he didn't because it's different this time. It only applies to 87% of U.S. counties. (Including all the most crowded ones.) 

I am reminded of the Peanuts comic in which Lucy persuaded Charlie Brown that she won't pull the football away this time. She always does, of course. 

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Los Angeles does not have the highest homeless population in the world, but it certainly has a large one. Over 66,000 according to this article, which places it 2nd behind New York City. This YouTube video gives you a visual overview of the way homelessness manifests itself in L.A.

This is not just a U.S. problem. Mumbai, Moscow and Manila have massive numbers of homeless people. Is this ever-growing homeless population our new normal?  

Here are a couple comments from the YouTube video cited above:

1.  Being a Filipino, i've gotten quite used to seeing homeless people on the streets but seeing them in large numbers for the first time in an affluent and world renowned American city like L.A. is quite shocking. Makes me realize how lucky i am for having my own home in my 3rd world country, no matter how humble it is.

2. I live 15 minutes away from downtown and it’s been 5 years since I’ve been down there and two weeks ago I passed by at night and let me tell you I was so shocked at how downtown looks it’s sad

3. I wish someone would do this for Seattle (YouTube vid) to bring more awareness to how bad it's getting. Our homeless situation is headed for this as well. We used to be the clean and green city. Now I hate going into downtown. smh

4. It is insane for American government to spend money on foreign charity, while ignoring the homeless problem Americans face everyday!

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As for me, painted apartments in South Minneapolis in the early 80's and do not recall ever seeing people living in tents. Two years ago I drove through the "old neighborhood" and was quite surprised at the size of the tent city there near the freeway. 

All this raises questions such as...
What are city governments doing to alleviate this problem? 
What are the underlying causes of this problem? 
What should politicians be doing about it?

Perhaps you have suggestions. Feel free to leave a comment.

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