Category: judiciary

Capacity Without Legitimacy

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March 30, 2025

by Stephen Stofka

This is part of a series on centralized power. The debates are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Cain looked around the restaurant. There was only one empty table. “Busy here this morning.”

Abel nodded. “Even when they are busy, they bring out water, coffee and a menu. To me, that’s a mark of good organization. Good service.”

Cain added half a packet of sugar to his coffee. “Yeah, that initiates the process. Like saying, ‘We see you. We are going to take care of your needs.’ I think that’s what the Trump administration has done these first two months. Tried to fulfill some campaign promises from the start.”

Abel rolled his eyes. “Like a waiter who brings a pitcher of water to the table and forgets the glasses, then blames the mistake on the dishwasher.”

Cain laughed. “Oh sure, just like that. Look, they’re trying to fix stuff that’s been broken for decades. Stuff like illegal immigration. Both parties promise to fix it but it’s a hard problem. Unlike past presidents, Trump is making an effort to fulfill his campaign promises.”

Abel interrupted, “Yeah, forget about human rights and due process. That’s a heck of a way to fix problems.”

Cain asked, “When does due process become excess process? We are a nation of laws, the saying goes, but we’ve become a country of lawyers who profit from creating red tape. We’re tangled in it. We’ve got plenty of process but few outcomes. We’re like a sailing ship stuck in the horse latitudes. Trump is trying to steer this ship toward land.”

Abel laughed. “That is a poetic description of this administration’s efforts.”

Cain asked, “This country has the capacity to fix problems but the processes that have evolved cripple the legitimacy of government. Trump is reasserting executive capacity.”

Abel objected, “But the way he is doing it weakens the legitimacy of his actions.”

Cain argued, “In the eyes of some. Anyway, you think some of these Venezuela gang members have any respect for human rights?”

Abel frowned. “How did they determine they were gang members? Because they had a tattoo. Is there a tattoo that distinguishes the gang? No. Any tattoo will do. That kind of arbitrariness is typical of the way this administration acts.”

Cain sat back in his seat as the waitress set his order in front of him. After serving Abel, Cain replied, “There’s what, a few hundred gang members? Could there have been a rush to judgment on one or two individuals? Maybe. So, should the government let two hundred criminals loose to save one person who maybe doesn’t belong to the gang? Reminds me of the old argument that it’s better that a lot of guilty people should go free rather than one innocent person should suffer.”

Abel nodded as he set his coffee cup down. “Yeah, you’re talking about Blackstone’s ratio. The need for firm proof before convicting an innocent person. It’s taught to law students as a foundational principle and Ben Franklin cited the ratio (Source). It alarms me that this administration would throw out a traditional principle of fairness just to look like they are accomplishing something.”

Cain replied, “There are so many issues in the 24-hour news cycle. How long will people be concerned about this? In the ‘80s and ‘90s, people worried about two American gangs, the Bloods and the Crips (Source). The drug epidemic was crack cocaine, not fentanyl. The two gangs killed each other to claim territorial rights to sell crack. There were innocent kids killed in drive-by shootings. The public wanted politicians to get tough on crime and they passed laws to get tough on crack dealers and users. One of the leaders in that effort was none other than Joe Biden. So now when Trump gets tough on criminal gangs, it’s bad? Come on.”

Abel said, “You’re talking about the 1994 crime bill that Biden sponsored. He was criticized later by people in his own party for sponsoring that bill. They said it unfairly targeted black people. But, there were a lot of leaders in the black community who supported that bill because the gangs and the drugs were tearing apart black families and communities (Source).”

Cain nodded. “So, this time the scourge is fentanyl, not crack. Strung out homeless people camped out on downtown sidewalks. It’s turned the downtown areas of many cities into graveyards of drug zombies. There’s a video that Peter Santenello shot in the Kensington neighborhood of Philadelphia and the druggies are walking around slumped over like the zombies on that TV show ‘The Walking Dead’ (Source). And where is the fentanyl coming from? Gangs from Latin America and suppliers in China. The drug problem is worse now than it was when Biden introduced the 1994 crime bill. Voters wanted action and Trump is delivering.”

Abel shook his head. “In the ‘90s, Biden went through the legislative process of building a coalition and forging compromises with other members of Congress. That’s the democratic way of creating policy. Trump is disregarding any procedural safeguards. Immigration officials are targeting people who have green cards (Source). They are in the country legally. This isn’t just about drugs. They’re targeting ideas that the administration doesn’t like. This is an arbitrary purge, an attack on free speech.”  

Cain nodded. “Yeah, I don’t agree with that. But some of those protestors did more than just talk.”

Abel argued, “Is there any evidence of violence? They arrested Khalil Mahmoud for leading protests in support of Palestinians. He’s a grad student at Columbia and he wanted the university to divest from Israel (Source). In the 1980s, there was a similar campaign to get U.S. universities to divest from South Africa to protest their apartheid policies (Source).”

Cain interrupted, “Yeah, that campaign was successful. There is not a powerful South African lobby in this country to pull political strings. On the other hand, the Israeli lobby might be more powerful than the gun lobby, if that’s possible. They don’t like any protests against Israel’s policies or actions and the Trump administration bows to any pressure from that lobby.”

Abel nodded. “Good point. So, Khalil was born in a Palestinian refugee camp (Source). Naturally, he is going to be sympathetic to the Palestinian cause. He’s got a green card, for God’s sake, not just a student visa. The folks at ICE didn’t know that. It’s all power and no preparedness. Totally arbitrary. So, the Trump administration interprets Khalil’s humanitarian concern for the suffering of innocent civilians as support for Hamas, a terrorist organization (Source). They’s making it up as they go along.”

Cain shook his head. “Ok, so there are excesses and mistakes. It’s the same with any administration. Does an injustice done to one foreign student…”

Abel interrupted. “There are others, as well.”

Cain nodded. “Ok, several foreign students. Does it get voters riled up enough? I don’t think so. We can argue whether it should or not, but the plight of a few people is far away from most people’s lives.”

Abel argued, “What about the plight of students marching in Birmingham, Alabama in 1963? Public sentiment shifted when they saw water cannons turned on kids protesting Jim Crow policies in the south (Source).”

Cain nodded. “Sure, but there wasn’t enough momentum to pass any legislation on that issue until after Kennedy was shot later that year. The Civil Right Act in 1964 is almost a memorial tribute to Kennedy, an appeasement for the death of a president in a southern state. It takes several events to arouse public sympathy to the point of action.”

Abel agreed. “Usually there’s some event that gets the public’s attention. People became more sympathetic to campus protest against the Vietnam War after the Kent State Massacre. The national guard troops killed four student protestors. Killed them! That’s when a lot of people said, ‘Hey, this is a step too far.’”

Cain interrupted, “Yeah, I don’t think the arrest of a few student protestors has pushed public sentiment to that point yet.”

Abel asked, “Every week, there’s more examples of bullying by this administration. Republicans in Congress are afraid to speak up publicly. Musk has threatened to primary any Republican opposition to Trump’s policies (Source). Congressional Republicans are approaching the administration privately, hoping to carve out exemptions for those policies that are hurting their constituents (Source). Trump has already cowed the legislative branch of his own party. Now his supporters are going after federal judges who rule against Trump’s policies (Source). A showdown is coming with the Supreme Court. They are rewriting the Constitution, eliminating the other two branches of government. That’s the world they want. No accountability for their actions.”

Cain sat back in his chair. “Whoa! A few excesses and you’re ready to declare the end of democracy. As Adam Smith once said, ‘there is a great deal of ruin in a nation’ (Source). You’re alarmed at the excesses of one party but less sensitive to excesses committed by a party that you voted for.”

Abel shook his head. “No, what I am concerned about is the pursuit of a dream that Donald Trump has had for many years. To be accountable to no one. To do whatever strikes his fancy at the moment and have no one to check him.”

Cain smiled as he pushed his plate to the side. “That’s probably a secret dream of many people.”

Abel frowned. “Yeah, but most of us develop some impulse control. Social, political and economic circumstances may put limits on our impulses, or we learn to develop that control as part of our character. Trump has not developed it. He goes around fondling women’s privates in public and says, ‘they let you do it’ (Source). No, they are frightened and don’t know how to respond. Why? Because most normal people do not do that unless they are drunk or high on drugs. Now Trump has put together a team of people to carry out his impulses.”

Cain shrugged. “You’re talking about the Hollywood Access tape before the 2016 election. Voters knew about it. They voted for him anyway. In 2024, they voted for him a second time.”

Abel sighed. “That’s what I don’t understand. Are people so loyal to their party that they are willing to disregard a candidate’s character? That’s what worries me.”

Cain stood. “That’s a discussion for another day. Which do you worry about more? Trump or the majority of American voters who voted for him?”

Abel lifted his eyebrows. “Good question. I’ll see you next week.”

Cain said, “I’ll pick up the tab. Next week, then.”

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Image by ChatGPT in response to the prompt “draw an image of an angry elephant.”

A Debate on Presidential Power

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February 16, 2025

by Stephen Stofka

This is part of a series on centralized power. This week’s debate is about the power of the President relative to the other branches of the federal government. The debates are voiced by Abel, a Wilsonian with a faith that government can ameliorate social and economic injustices to improve society’s welfare, and Cain, who believes that individual autonomy, the free market and the price system promote the greatest good.

Abel began the conversation. “Our country is founded on the principle of federalism, a sharing of power between the states and a centralized government in Washington. In that central authority are three branches that balance and check each other’s ambitions for power. It looks like Trump is challenging those restraints.”

Cain shrugged. “The Speaker of the House doesn’t seem worried. The Congress hasn’t been able to get anything done. It’s been almost thirty years since Congress completed a full budget (Source – pdf). The executive branch is stuck with the burden of implementing years of legislative compromises. It is entirely appropriate that the President clean up the mess.”

Abel shook his head in disbelief. “Trump is taking control of the purse, a power given to Congress by the Constitution. Doesn’t it worry you that a Democratic president could simply undo any laws passed by a Republican legislature?”

Cain looked puzzled. “If the President gets out of line, the Constitution gives Congress the power to impeach the President.”

Abel laughed. “Trump has already been impeached twice. Never in the history of this country has the Senate convicted a President. Impeachment is an empty threat. After the Supreme Court’s decision to grant the President immunity from criminal prosecution, the President can act like a king.”

Cain frowned. “FDR expanded the scope of the executive when he took office in 1933. Did your group sound the alarm then? Did you cry ‘Constitutional crisis’ when Roosevelt threatened to pack the Supreme Court to get his way? No, your group stood by silently as Roosevelt upended 150 years of tradition. This President is trying to undo that shameful legacy, to return this country to its founding roots.”

Abel showed his disdain. “He is undoing a century of building government institutions that help people, that protect people from the power of large corporations. This is not the America of the 18th century.”

Cain argued, “They are inefficient government institutions that swear allegiance not to the people they serve but Washington lobbyists and their own internal processes. We have a spending crisis. The Constitution gives the President the executive power. Alexander Hamilton argued for a strong executive and President Trump embodies Hamilton’s vision.”

Abel sighed. “You’re talking about the unitary executive theory. Advocates for that theory take Hamilton out of context. He wanted to convince those in the state legislatures that the strong executive in the proposed Constitution was preferred to the weak plural executive that had been defined in the Articles of Confederation. Hamilton was not advocating for a President with all the powers of a king. The country had fought seven bloody years to rid themselves of a king.”

Cain shook his head. “Look, Washington and Jefferson set the example. They were strong Presidents who sat at the top of the executive hierarchy. They didn’t ask Congress for permission. They defined their role as the chief executive of the laws.”

Abel interrupted. “Ok, but the executive branch was small in the early 19th century. Employees worked at the whim of the President. As the country grew, there needed to be more stability in the executive work force. Congress wanted more control or supervision of the various departments. After all, it is Congress who writes the laws. Congress represents the people. The President is the people’s agent, executing the laws that the representatives of the people have passed.”

Cain held up his hand. “Look, you’re describing a clerk, not the leader of a country. Hamilton was arguing for a leader with enough power to meet threats from other countries led by monarchs with absolute power.”

Abel argued, “That was another century when even the mightiest rulers had relatively little firepower at their command. We have invented weapons that are too destructive to put at any person’s command. There have to be checks and balances within the executive just as there are within the legislative and judicial branches.”

Cain shook his head. “The more destructive the weapons, the more we need a strong leader with the authority and power to act decisively to answer any threats from other countries.”

Abel frowned. “There has to be checks and balances within each branch. That’s especially true for the executive. All previous empires have fallen because one person gained too much power. Rome, Persia, Egypt, and Byzantium come to mind. There are too many temptations. A President with control of the Bureau of Labor Statistics would be able to adjust the monthly unemployment numbers or inflation report to make his administration look good. Argentina did this for seven years (Source). China, Venezuela and Hungary do it. He could disallow the counting of some of the population by the Census Bureau to reduce some grant funding for states who did not vote for him.

Cain scoffed. “There are checks and balances between Congress and the Executive. If a President were to ‘cook the books,’ that information would be leaked. The Congress could impeach the President.”

Abel’s expression was stern. “When the founders wrote the impeachment rules, they envisioned a system without political parties. In a party system, the President is the leader of the party. Impeachment is not a check. If the House is the same party as the President, they dare not bring their leader up on impeachment charges. A Democratic-led House would not impeach Andrew Jackson in 1833. All the anti-Jacksonian majority in the Senate could do was censure Jackson.”

 Cain argued, “In 1868, the Republican-led House impeached Andrew Johnson.”

Abel shook his head. “Johnson was a Democrat who ran with Lincoln on a third-party ticket called the Union Party (Source).”

Cain’s tone of voice was conceding. “Ok, maybe impeachment is not the ideal check on a President. But they pay attention to popular opinion. If the public is outraged, they will complain to their representatives. Presidents care about public opinion.”

Abel showed a wry smile. “George Bush’s poll numbers fell as low as 25% (Source). What did that accomplish? There is an entire phalanx of advisors who shield the President from disheartening news. A President lives in an information bubble designed to protect his self-confidence.”

Cain argued, “Well, there are no checks on the Supreme Court. They have lifetime tenure and the last one to be impeached was in 1805 (Source). They control their own agenda. The House and Senate make up their own rules (Source) and have no internal Constitutional checks. In the Senate, the Majority Leader controls all the floor time. If he doesn’t want some legislation brought to the floor, it isn’t considered. The President should have the same authority over officials in the executive branch. He should be able to direct them on how he wants the law executed. His decisions should not be subject to review by a court.”

Abel frowned. “You’re describing the unitary executive theory again. It grants the President most of the powers of a king. We know that Hamilton, Jefferson, Madison and the other founders did not want a king. This country rejected rule by the whim of one person, the king. We are a nation of laws, not whims. Trump and Musk are two rich crackpots who dance to the music of their own whims. The wolves in Russia and China are licking their chops. By the time Trump is done, this country will be weaker.”

Cain scoffed. “This country was already weak. That’s what the President is trying to fix. The country has $36 trillion dollars in debt. We’re spending more on interest than we do on defense. We play mister nice guy, letting other countries take advantage of our charity, then vote against our interests in the U.N. DOGE is going to trim the discretionary items in the budget then look to implement fraud controls in mandatory spending programs like Medicare and Medicaid. Trump has shown he’s a tough negotiator.”

Abel laughed. “Trump changes his mind from day to day, from week to week. It’s a sign of weakness that Putin and Xi will take advantage of.”

Cain shook his head. “The President dances like Muhammed Ali in the ring. That’s what we need. A fighter who keeps other countries hesitant to make any aggressive moves. That’s the road to a cautious peace.”

Abel sighed. “It’s only a few weeks since Trump took office. He will leave a trail of chaos and carnage and half of the people in this country won’t hold him responsible.”

Cain laughed. “And the other half of the country thinks he’s the devil. That says more about all of us than it does President Trump. We’ll talk next week.”

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Image by ChatGPT

The scene is set in a grand hall with tall columns, chandeliers, and intricate tapestries. A majestic king is seated on a grand throne, dressed in luxurious royal robes adorned with gold and jewels. Several people kneel before him in deep reverence, wearing medieval-style clothing.

Claims to Truth

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August 4, 2024

by Stephen Stofka

In this week’s letter I will clean up my notes on the judiciary before I start a series on investing next week. For several millennia, human societies have struggled to figure out the how and the who of lawmaking. How to construct a rule whose language is clear enough to be understood but flexible enough to apply to varying circumstances? Who will enforce the rules? How will they be enforced?

Let me start with a real story from my childhood. My younger brother and I were only one and a half years apart in age and were quite competitive. Tired of listening to my brother and I argue over the rules of various card games we played, our dad bought us a book called Hoyle’s Official Book of Games. This resolved some of our disputes, but still we argued over the interpretation of the rules. If a rule in Rummy requires a player to play a card once they have touched it, how to interpret the word “touch?” If a gust of wind threatens to toss a few cards from the deck, can a player reach out to prevent that without having to take that card? What if a player grazes the card with their elbow while reaching for a drink?

Former Supreme Court Justice Stephen Breyer (2024) wrote that many cases the court decides can hinge on the interpretation of one or two words in a law. In the Heller decision on the Second Amendment, the majority and dissenting justices wrote 80 pages of argument over the meaning of “bear arms” in the Second Amendment. He quotes the example of a railroad that required passengers to pay full fare for each animal they brought on board. When a biology teacher brought a number of snails on the train for a class, the conductor charged the teacher a fare for the snails. When the teacher complained that the rule was meant for pets, the conductor explained that the rule used the word “animals,” not “pets.” Snails are animals.

If you were a judge, how would you rule? Breyer’s story raises the question: what if the rule said, “domestic animals?” What does the term “domestic” specify regarding animals? An animal related to a person’s home or family. Snails can be kept at home so even this change in the rule could be interpreted to include snails. The most important symbol in mathematics is the equals sign. There are specific rules of valid operations on either side of an equals sign. Plain language has no equals sign. For centuries, French was the language of diplomacy. The language has fewer words, which conveniently left agreements between diplomats open to interpretation.

If the truth were an island, it would be stained with the blood of millions. Throughout history, kings, philosophers and countries have laid claim to and fought over the truth. In 17th century Britain, a civil war erupted between monarchists, those loyal to the king and the power of the king, and Parliamentarians, those loyal to the Parliament as representatives of the people’s will. Robert Filmer, a noted monarchist, argued that the right to property comes from God through the King. John Locke argued that the right to property comes directly from God. When God drove Adam and Eve out of the garden, He told the couple they would have to work the land for their survival. Therefore, those who cultivate the land add value to the land and “thereby makes it his property” (PDF link, p. 116). The state merely recognizes that title. In later centuries, the American colonists would use this reasoning to deny that Indians had any right to the land because they did not cultivate it.

Journalists often make claims on the truth. Matthew Yglesias wrote on his Substack “this is journalism, and we owe a duty of truth to our audience.” He referred to “journalists’ obligations of candor,” but truth and candor, or honesty, are different. In its 1964 decision New York Times v. Sullivan, the Supreme Court ruled that statements about public officials were not subject to claims of libel unless they were shown to be made with “actual malice” and a disregard for the truth. That is a standard of candor, not truth.

The American Bar Association states that lawyers “must be honest, but they don’t have to be truthful.” They distinguish between being honest and being truthful. “A defense lawyer has no obligation to actively present the truth.” Being honest requires only that “Counsel may not deliberately mislead the court.” A lawyer who serves their client’s interest by making a false representation to the court risks disbarment. Rudy Guiliani was recently disbarred for making deliberate misrepresentations to further Trump’s claims of a stolen election.

A witness, on the other hand, must vow to “tell the whole truth” to the court. Politicians take no such vow, nor do they pledge a vow of candor, to be honest with the public. They take an oath of office to “support and defend the Constitution against all enemies,” a vague statement open to wide interpretation. It is up to the public to judge their lies, and to assess the importance of those lies. Abraham Lincoln supposedly claimed that all the people could not be fooled all the time, but a politician does not have to meet that high bar. They only need to fool enough of their constituents to get re-elected.

Should Congress set minimum years of service as a judge for Supreme Court nominees? Chief Justice John Roberts, and Justices Kagan and Thomas had the fewest years on the bench before joining the Court. I will leave the details and links in the footnotes. I have many more notes after reading Breyer’s recent book, but I will close this for now. Next week, I hope to present some perspective on investing in plain language without equations.

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Photo by John Cameron on Unsplash

Keywords: rules, honesty

Breyer, S. G. (2024). Reading the constitution: Why I chose pragmatism, not textualism. Simon & Schuster.

The link to the justices’ bios is here. Chief Justice John Roberts served as an Appeals Court judge for only 2 years before becoming Chief Justice. Justice Clarence Thomas – one year. Justice Samuel Alito – 16 years. Justice Elena Kagan had no prior judge experience. Justice Sonia Sotomayor – 16 years. Justice Neil Gorsuch – 10 years on an appeals court.. Justice Brett Kavanaugh – 12 years. Justice Amy Coney Barrett – 3 years. Justice Ketanji Brown Jackson – 9 years.